The opinion of the court was delivered by: Denise Cote, District Judge:
In his report ("Report"), Magistrate Judge James C. Francis IV has recommended that this petition for a writ of habeas corpus be granted. The petitioner was drunk when he killed and seriously injured passengers in a vehicle with which his car collided. In brief, the Report concluded that the petitioner was entitled to benefit from a change in New York's depraved indifference law which followed his trial and which requires the People to offer sufficient evidence at trial that he had formed, from the perspective of the petitioner's own or subjective state of mind, the requisite mens rea at the very time of the accident. Both the petitioner and the respondent have filed objections to the Report. For the following reasons, the Report is adopted in part and the petition is denied.
I. The Proceedings in New York State Court
A. The Collision and Trial Neville Wells drove through a red light on June 14, 2004, and struck a car in which Judith Gubernikoff and her father Robert Smith were riding. Gubernikoff died and Smith suffered severe injuries. Wells was drunk. When tested two hours after the accident, his blood alcohol level was more than three times the legal limit.
Wells was indicted. He was charged with one count each of murder in the second degree, vehicular manslaughter in the second degree, assault in the first and second degree, and vehicular assault in the second degree. Two of the counts were premised on a depraved indifference theory: murder in the second degree and assault in the first degree.
Wells waived his right to a jury and was tried before Justice Richard Carruthers in New York State Supreme Court, New York County. At the close of the State's case, defense counsel moved to dismiss the depraved indifference charges on the ground that "under no view of the evidence [did] the circumstances in this case evince a depraved indifference to human life." He cited People v. Register, 60 N.Y.2d 270 (1983), the then-applicable standard for depraved indifference. The trial judge reserved decision.
In his defense, the defendant attempted to introduce evidence of his chronic alcoholism. The trial court excluded the evidence on the ground that New York law did not allow a defense of intoxication for crimes of recklessness.
At the conclusion of the trial, defense counsel renewed his motion that the State had "not proven circumstances evincing a depraved indifference to human life." The trial court denied the motion and convicted Wells on all counts on May 19, 2005. Wells was sentenced to concurrent indeterminate terms totaling seventeen years to life imprisonment.
B. The Feingold Decision In the meantime, a significant change was taking place in New York's law of depraved indifference murder. A series of New York Court of Appeals decisions flagging this change culminated in People v. Feingold, 7 N.Y.3d 288 (2006), which overruled its prior standard for depraved indifference murder.
Under the previous standard, articulated in Register, the New York Court of Appeals explained that depraved indifference murder was characterized by a reckless state of mind and "conduct which creates a grave risk of death to another person."
60 N.Y.2d at 276. "[D]epraved indifference referred to objective circumstances surrounding the offenses committed," and these "objective circumstances," not mens rea, are what distinguished depraved indifference murder from manslaughter. Mannix v. Phillips, 619 F.3d 187, 198 (2d Cir. 2010).
On July 5, 2006, following Wells's conviction but before Wells filed his brief on appeal with the First Department, the New York Court of Appeals issued its opinion in Feingold. The Court of Appeals found that "depraved indifference to human life is a culpable mental state," Feingold, 7 N.Y.3d at 294, and that New York courts should find defendants guilty of crimes requiring a showing of depraved indifference only if the defendant evinces "a willingness to act not because [he] intends harm, but because [he] simply doesn't care whether grievous harm results or not." Id. at 296 (citation omitted). Depraved indifference was, therefore, no longer measured by reference to the objective circumstances of the offense.
The New York Court of Appeals has since acknowledged that its jurisprudence in this area had "gradually and perceptibly changed from an objectively determined degree-of-risk standard (the Register formulation) to a mens rea" standard. Policano v. Herbert, 7 N.Y.3d 588, 602-03 (2006). Nonetheless, it asserted that it adhered to the Register formulation up until the Feingold decision, which explicitly overruled the articulation of the standard for second-degree murder in Register. Policano,
7 N.Y.3d at 603. C. The Petitioner's State Court Appeal Wells appealed his conviction, arguing that the evidence presented at trial was insufficient to support his conviction on the depraved indifference charges and that those charges were against the weight of the evidence, relying on the change in New York state law articulated in Feingold. He also argued that the trial court erred in precluding expert testimony concerning his chronic alcoholism and in finding that it could not take under consideration evidence of his extreme intoxication to "negative" the culpable mental state required for the depraved indifference charges.
On June 26, 2008, the First Judicial Department of the Appellate Division affirmed Wells's conviction. People v. Wells, 862 N.Y.S.2d 20 (1st Dep't 2008). The Appellate Division found, first, that the petitioner's objection to the evidence referencing the Feingold standard had not been preserved for appeal. The panel went on to say that even if the objection was not procedurally barred, the evidence at trial was sufficient for conviction under either the Register or Feingold standard. The Appellate Division also found that the trial court properly excluded the testimony Wells wished to present about his chronic alcoholism. The New York Court of Appeals denied leave to appeal on November 19, 2008. People v. Wells, 11 N.Y.3d 858 (2008). On November 25, 2008, the Court of Appeals retroactively applied its decision in Feingold to all cases pending on direct appeal "in which the defendant has adequately challenged the sufficiency of the proof as to his depraved indifference murder conviction." People v. Jean-Baptiste, 11 N.Y.3d 539, 542 (2008).
II. The Habeas Petition and Report Wells filed this petition on February 11, 2010. The Report was issued on December 8. The parties objected to the Report on February 23 and 25, 2011. The respondent submitted a further reply by letter on March 10.
The Report began its analysis by observing that a defendant may benefit from changes in the law that occur before his conviction becomes final, and that a conviction becomes final when his opportunity to petition for a writ of certiorari expires, i.e., ninety days after the New York Court of Appeals denies an application for leave to appeal. In this case, Wells's conviction became final on February 17, 2009. As a result, the Report concluded that Wells was entitled to benefit from the Jean-Baptiste ruling in 2008 that gave retroactive effect to the Feingold decision, so long as he adequately preserved the issue raised in his habeas petition.
The Report further noted that, in the event that Wells is entitled to the benefit of the Feingold decision, he is also entitled to rely on a more recent decision by the New York Court of Appeals clarifying precedent established by Feingold in the context of an intoxicated defendant. The New York Court of Appeals in that case held that "[t]here is insufficient evidence to support a conviction for depraved indifference assault. The trial evidence established only that defendant was extremely intoxicated and did not establish that he acted with the culpable mental state of depraved indifference." People v. Valencia, 14 N.Y.3d 927, 927-28 (2010) ("Valencia II"). Based on this ruling, the Report concluded that the First Department's holding in Wells, which affirmed the conviction for depraved indifference crimes based on, in part, a finding of mens rea at the moment the petitioner began to drink, is no longer good law.
Turning to the issue of whether Wells is entitled to rely on Feingold and Jean-Baptiste, the Report reviewed relevant precedent and acknowledged that the First Department's finding of procedural default was "within the firmly established and regularly followed precedent of New York courts under circumstances similar to the ones presented by the petitioner's case" and therefore constituted both an "adequate and an independent ground for its decision." The Report nonetheless concluded that Wells's claim was not procedurally barred because "the legal basis" for the claim "was not reasonably available at the time of the trial," and because he will be prejudiced by a court's refusal to acknowledge the claim.
Having found that Wells was entitled to benefit from the change in the law embodied in Feingold and its clarifying progeny, including Valencia II, the Report concluded that the Appellate Division erred in affirming Wells's conviction. While the Appellate Division had found that Wells's objection based on applying the law as enunciated in Feingold was procedurally barred, it had gone on to find, in the alternative, that even under that standard, the evidence presented at trial was sufficient to sustain his conviction. In the view of the Report, the Appellate Division erred in assessing Wells's mental state at the time he embarked on a course of conduct that led to him operating a car while inebriated, and not at the moment of the collision. In reaching this conclusion, the Report relied heavily on Valencia II, which it described as holding that "evidence of a defendant's decision to begin drinking despite the knowledge that he plans to drive later in the evening is insufficient to support a conviction for a depraved indifference crime." The Report also reviewed the trial evidence and concluded that if the correct legal standard had been applied, there was insufficient evidence of a culpable mental state at the time of the collision to support a conviction.
Finally, the Report denied petitioner's claim that the trial court erred in excluding his proffered psychiatric evidence of his chronic alcoholism. The Report concluded that such evidence would not have shed light on whether Wells possessed the requisite culpability at the time of the collision.
In shaping the relief to which Wells was entitled, the Report noted that the significant change in the law articulated in Feingold deprived the prosecution of the opportunity to present evidence of Wells's mental state at the time of the collision. Therefore, a retrial of Wells on the depraved indifference charges was appropriate.
A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of the portions of the report to which a party objects. 28 U.S.C. § 636(b)(1); see Finkel v. Romanowicz, 577 F.3d 79, 84 n.7 (2d Cir. 2009) (citation omitted). Either the petitioner or the respondent ...