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Keith Johnson v. J.F. Bellnier

July 27, 2011

KEITH JOHNSON, PETITIONER,
v.
J.F. BELLNIER,
RESPONDENT.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT AND RECOMMENDATION

On January 23, 2009, Keith Johnson ("petitioner" or "Johnson") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See ECF No. 1, Petition ("Pet.").) The court referred the petition to Magistrate Judge Ramon E. Reyes for a Report and Recommendation on April 12, 2010. (See ECF No. 15, Order dated 4/22/2010.) Judge Reyes issued a Report and Recommendation ("R&R") on November 8, 2010, recommending that the habeas petition be granted in part and denied in part. (See ECF No. 18, R&R dated 11/8/2010.) Respondent filed timely objections to the R&R, and petitioner responded. (See ECF No. 22, Respondent's Objections to Magistrate Judge's R&R ("Obj."); ECF No. 22, Respondent's Memorandum of Law in Support of Objections to Magistrate Judge's R&R ("Obj. Mem."); ECF No. 25, Reply in Support of R&R and in Response to Objections Filed by Respondent ("Reply to Obj.").) Having undertaken a de novo review of the record in light of the respondent's written objections pursuant to 28 U.S.C. § 636(b)(1)(C), the court adopts in part and modifies in part the R&R.

BACKGROUND

I. The Crime

The court assumes familiarity with the detailed facts and procedural history of this case, as accurately set out in Judge Reyes's R&R. (See generally R&R.) The relevant facts are repeated here only to the extent necessary for the court's analysis. Petitioner Johnson was convicted, after a jury trial, of depraved indifference murder, and sentenced to a prison term of twenty-five years to life. (See Pet. at 2-3.) The charges against Johnson stem from the killing of Calvin Chandler ("Chandler") on September 23, 2002. (See Pet. at 6; see also ECF No. 10, Aff. in Opp'n to Habeas Petition ("Opp'n") at 1-2.) According to Johnson's petition and his written and videotaped confessions, the facts surrounding Chandler's death are as follows:

On September 23, 2002, while Johnson was driving a friend's Ford, a passenger in the car spotted Chandler*fn1 driving Johnson's black Lexus. (Pet. at 6; ECF No. 11, Ex. H, Trial Transcript ("Trial Tr.") at 178; ECF No. 27, Ltr. Filing with the Court a DVD and Transcript of Petitioner's Videotaped Statement ("Confession Tr.") at 2-3, 6-7.) Johnson caught up with Chandler, got out of the Ford and into the driver's seat of the Lexus, and Chandler moved to the passenger's seat. (Pet. at 6; Trial Tr. at 178; Confession Tr. at 3, 7-8.) Johnson then drove with Chandler to the Marlboro Houses in Coney Island, where several of Johnson's friends were waiting. (Pet. at 6; Trial Tr. at 178; Confession Tr. at 4.) One of Johnson's friends, "Base," hit Chandler in the head with a gun and dragged him into the hallway of the building. (Pet. at 6; Trial Tr. at 179; Confession Tr. at 5, 10-11, 12.) At some point, Chandler was released and began walking away from the building. (Pet. at 6; Trial Tr. at 179; Confession Tr. 5, 14.) Johnson feared that if Chandler reached his family and friends, Johnson would be held responsible for the attack on Chandler and "[he] would have been dead." (Trial Tr. at 179 ("I felt that I had no choice."); Pet. at 6-7 ("[Petitioner] believe[d] his life was in danger and had to do something before someone found out that [petitioner] was the reason Chandler was hit with a gun."); Confession Tr. at 5 ("I was gonna get done in."), 14 ("And I knew I had to do something or it was gonna get done to me.").) Johnson grabbed a gun, ran after Chandler, and shot at him several times. (Pet. at 7; Trial Tr. at 179; Confession Tr. at 5, 14.) Soon thereafter, Chandler was found dead with six gunshot wounds, two of which could have been fatal. (Trial Tr. at 235-37.)

II. Trial and Sentence

Petitioner Johnson was charged by Kings County

Indictment Number 7782/2002 with two counts of murder in the second degree -- intentional murder and depraved indifference murder -- one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. (See Opp'n at 2; Obj. at 2.) A jury trial commenced on June 3, 2003, with Judge Carolyn E. Demarest presiding. (See Trial Tr.) The prosecution presented into evidence Johnson's written and videotaped confessions. The written confession was read to the jury by Detective Taylor. (Id. at 177-79.) The videotaped confession was authenticated by Assistant District Attorney Barry and played for the jury. (Id. at 259-60.) The prosecution also presented the testimony from two police officers, Police Officer Acomata and Police Officer Caraballo, a ballistics expert, Detective Valenti, and a doctor from the Chief Medical Examiner's Officer, Dr. Gutierrez, all of which corroborated, at least in part, Johnson's version of the events surrounding Chandler's death. (See id. at 111-13, 142-44, 223-24, 235-37.)

The defense attacked the credibility of the written and videotaped confessions by presenting the testimony of Bettye and Jeannine Johnson, petitioner's grandmother and aunt, who testified that police officers coerced the petitioner into confessing to the murder by, among other things, threatening his family. (Id. at 286-325, 326-61.) Additionally, the defense presented the testimony of Tyesha Blakely, an eyewitness to the murder, who testified that "Base," and not Johnson, fired the shots at Chandler that night. (Id. at 405-07, 561.)

On June 9, 2003, at the close of the prosecution's case, the court held, off the record, what appears to have been a preliminary charging conference. Thereafter, the prosecutor stated that the court held "somewhat of a charge conference yesterday" and that the State was "still asking to give the depraved indifference charge of murder two." (Id. at 362-63.) Judge Demarest suggested that she had declined the request the prior day, responding that she "wouldn't be inclined to change [her] ruling." (Id. at 363.) A formal charging conference was held on June 12, 2003, during which the prosecution again requested that the jury be instructed on two counts of murder in the second degree -- intentional murder and depraved indifference murder. (Id. at 514-16.) Judge Demarest denied the request, stating that the evidence presented by the prosecution would only support intentional acts and that it would therefore be inappropriate to submit both theories of murder to the jury. (Id. at 516-17.) Defense counsel noted his agreement with that ruling. (Id. at 516.) The judge, however, allowed the prosecution to present authority that would support charging the jury with depraved indifference murder. (Id. 516-17.) Some off-the-record discussions must have taken place because, on June 16, 2003, Judge Demarest stated to the parties that, consistent with her prior communication with them, she would also submit the depraved indifference murder charge to the jury. (See id. at 522.) No explanation was given for the change in ruling, and no objection by the defense was recorded on the trial record.

Judge Demarest instructed the jury on intentional murder in the second degree, depraved indifference murder in the second degree, manslaughter in the first degree, manslaughter in the second degree, and criminal possession of a weapon in the third degree. (Id. at 615-26.) The jury was instructed to start with the intentional murder count and work its way down the list to depraved indifference murder, manslaughter in the first degree, manslaughter in the second degree, and finally criminal possession of a weapon. (Id. at 615, 625-26.) If a guilty verdict was reached on a count, the jury was instructed to go no further. (Id. at 615.) With respect to the depraved indifference murder count, the court instructed the jury as follows:

The penal law provides a person is guilty of murder in the second degree when under circumstances evincing a depraved indifference to human life, he or she recklessly engages in conduct which creates a grave risk of death to another person and thereby causes the death of that person. A person acts recklessly with respect to another person's death when that person engages in conduct which creates a substantial, unjustifiable and grave risk that another person's death will occur, and when he is aware of and consciously disregards that risk, and when that risk is of such nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in this situation. . . .

Conduct evincing a depraved indifference to human life is much more serious and blameworthy than conduct which is merely reckless, it is conduct which beyond being reckless is wanton, so deficient in moral sense and concern, so devoid for the life and lives of others as to equal in blameworthiness intentional conduct which produces the same result. In determining whether a person's conduct evinced a depraved indifference to human life, a jury would have to decide whether the circumstances surrounding the person's reckless conduct when objectively viewed made it so uncaring, so callous, so dangerous and so inhuman as to demonstrate an attitude of total and utter disregard for life of the person endangered. (Id. at 618-20.) The court repeated virtually identical instructions to the jury after receiving two notes, the first asking for the charges in writing, which the court refused, and the second asking for the charges to be re-read. (Id. at 644-48, 682-85.)

The jury returned a verdict on June 18, 2003. The jury acquitted Johnson of intentional murder in the second degree, but found him guilty of depraved indifference murder in the second degree. (Id. at 691-92.) Defense counsel did not make any motions regarding the jury verdict at that time, but, upon inquiry by the court, reserved any motions by the defense. (Id. at 695-96.)

On July 9, 2003, at sentencing, defense counsel noted that he failed to make the appropriate motion at the end of the case, and requested at that time that the court "not allow the verdict of guilty to stand, and direct a verdict of not guilty, in that there [was] no reasonable view of the evidence by which a verdict of guilty could be reached." (ECF No. 11, Ex. H, Sentence Transcript ("Sent. Tr.") at 2-3.) Judge Demarest denied the request, finding that "the evidence presented to the jury would sustain the verdict and was sufficient." (Id. at 3.) The prosecutor argued against any leniency by the court in sentencing Johnson, noting that the way Johnson had killed Chandler was "particularly aggregious [sic] and particularly severe" and that it was "abundantly clear" that "Johnson didn't want Calvin Chandler to ever get up from the ground again, and he fired as many shots into him at close distance right on top of him even as he was helpless to make sure that wouldn't happen." (Id. at 5-6.) Judge Demarest sentenced petitioner to the maximum sentence of twenty-five years to life, finding that the killing of Chandler "was, essentially, a cold-blooded killing." (Id. at 10.)

III. Direct Appeal

Johnson, represented by new counsel on appeal, filed a timely notice of appeal of his conviction. (See ECF No. 11, Ex. A, Br. for Defendant-Appellant at 2.) On appeal, petitioner argued that the evidence was legally insufficient to support his conviction for depraved indifference murder and that the verdict was against the weight of the evidence. (Id. at 27.) Recognizing that the issue was unpreserved for appellate review, petitioner requested that the Appellate Division reach the legal insufficiency question in the interest of justice or, alternatively, that it reverse the conviction because his trial counsel was ineffective for failing to move to dismiss the depraved indifference conviction on legal insufficiency grounds. (Id. at 27-28.) The State opposed the relief requested on appeal, arguing that the legal insufficiency question was unpreserved for appellate review, that review on the merits would not serve the interest of justice, and that the evidence was legally sufficient to support the conviction for depraved indifference murder. (See ECF No. 11, Ex. B, Respondent's Br. at 13-14, 23.)

On October 11, 2005, the Appellate Division, Second Department, affirmed Johnson's conviction. See People v. Johnson, 801 N.Y.S.2d 755, 755 (N.Y. App. Div. 2005). The Appellate Division concluded that the legal insufficiency issue was "not preserved for appellate review" and it "declined to reach the issue in the exercise of [its] interest of justice jurisdiction." Id. Further, the Appellate Division concluded that Johnson's "remaining contentions [were] without merit." Id.

On February 28, 2006, the New York Court of Appeals denied Johnson leave to appeal. See People v. Johnson, 6 N.Y.3d 814 (2006). As noted by Judge Reyes in the R&R, Johnson's conviction became final ninety (90) days later, on May 29, 2006, when his time for filing a petition for a writ of certiorari to the Supreme Court expired. (See R&R at 6.)

IV. Coram Nobis and § 440.10 Motion

Petitioner filed a motion for a writ of error coram nobis, dated January 19, 2007, seeking to vacate his conviction on the ground that his appellate counsel was ineffective for failing to raise an ineffective assistance of trial counsel claim on direct appeal. (ECF No. 11, Ex. C, Mot. for Writ of Error Coram Nobis.) The State opposed the petition for a writ of error coram nobis, arguing that appellate counsel did raise the ineffective assistance of trial counsel issue on appeal, and therefore Johnson had failed to establish that he received ineffective assistance of appellate counsel. (ECF No. 11, Ex. D, Opp'n to Petition for Writ of Error Coram Nobis.) On April 10, 2007, the Appellate Division, Second Department, denied the petition for a writ of error coram nobis. See People v. Johnson, 831 N.Y.S.2d 910, 910 (N.Y. App. Div. 2007). The New York Court of Appeals denied Johnson leave to appeal on August 13, 2007. See People v. Johnson, 9 N.Y.3d 877, 877 (2007).

On September 4, 2007, petitioner brought a motion pursuant to N.Y. Crim. Proc. L. § 440.10 ("§ 440.10 motion") to vacate his judgment of conviction. (ECF No. 11, Ex. E, Petitioner's § 440.10 Motion to Vacate Conviction.) Petitioner argued that his trial counsel was ineffective on three grounds:

(1) failure to move to dismiss on legal insufficiency grounds; (2) failure to object to the depraved indifference murder jury charge; and (3) failure to move, pursuant to N.Y. Crim. Proc. L. § 730, for a competency hearing. (See id.; see also ECF No. 11, Ex. G, Decision and Order Denying § 440.10 Motion ("Order Denying § 440.10 Mot.") at 2.) The State opposed the motion, arguing that the ineffective assistance of counsel claim based on the failure to object to the depraved indifference murder charge was procedurally barred, and that petitioner received effective assistance of counsel. (ECF No. 11, Ex. F, Opp'n to § 440.10 Motion.)

Judge Demarest denied petitioner's § 440.10 motion by a Decision and Order dated August 28, 2008. (See Order Denying § 440.10 Mot.) The court first found that petitioner's ineffective assistance of counsel claim with respect to the failure to move to dismiss on legal insufficiency grounds was procedurally barred because "the record indicates that counsel did in fact make a motion to dismiss." (Id. at 3.) Further, the court found that "the fact that neither of defendant's claims as to the legal sufficiency of the evidence and the jury charge were preserved does not establish that counsel was ineffective for failing to make proper or timely motions" because "[b]ased on the law at the time of defendant's trial in [2003],*fn2 counsel acted in accordance with acceptable legal strategy." (Id. at 3-4.) Judge Demarest recognized that "the law of depraved indifference murder [had] recently changed," but noted that petitioner's case was governed by the law in effect at the time of his conviction, which was articulated in People v. Register. (Id. at 4.) Under that standard, the State had to show that "the defendant's reckless conduct was imminently dangerous and created a grave risk of death" and the focus for the mens rea element was "not on the subjective intent of the defendant but rather on an objective assessment of the circumstances surrounding the acts and the factual setting in which the risk-creating conduct occurred." (Id.) Given the Register standard, the court found that failure to preserve the legal insufficiency issue or to object to the depraved indifference murder charge were not unreasonable. (Id. at 7.) With respect to petitioner's ineffective assistance of counsel claim for failure to move for a § 730 hearing, the court dismissed the claim pursuant to N.Y. Crim. Proc. L. §§ 440.10(3)(a) and 440.10(4)(b), finding that petitioner unjustifiably failed to adduce the issue on the record and that he failed to substantiate the claim with supporting evidence and sworn affidavits. (Id. at 7-8.)

Petitioner requested leave to appeal the denial of his § 440.10 motion to the Appellate Division, which was denied on January 19, 2009. (See Opp'n at 5; Obj. at 6; ECF No. 6, Affirmation of Keith Johnson.)

V. Habeas Petition and R&R

Petitioner filed the instant pro se petition for a writ of habeas corpus on January 23, 2009. (See Pet.) In his petition, Johnson asserts four grounds for relief: (1) the evidence at his trial was legally insufficient to support his conviction for depraved indifference murder; (2) his trial counsel was ineffective for failing to move to dismiss the depraved indifference murder count on legal insufficiency grounds and for failing to preserve the issue for appellate review; (3) his trial counsel was ineffective for failing to request a § 730 hearing; and (4) his appellate counsel was ineffective for failing to raise the ineffective assistance of trial counsel claim. (See Pet.)

Respondent filed an answer on September 23, 2009. (Opp'n; ECF No. 10, Memorandum of Law in Support of Opposition to Habeas Petition ("Opp'n Mem.").) Respondent argued that petitioner was not entitled to habeas relief because: (1) the legal insufficiency claim was procedurally barred and meritless; (2) petitioner received effective assistance of counsel with respect to the legal insufficiency claim; (3) petitioner received effective assistance of counsel with respect to the § 730 hearing; and (4) petitioner received effective assistance of appellate counsel. (See Opp'n Mem.)

Petitioner, now represented by counsel, filed a reply in further support of his habeas petition on November 30, 2009. (See ECF No. 14, Reply in Support of Habeas Petition ("Pet. Reply").) In his reply, petitioner argued that the habeas petition should be granted because: (1) the evidence was legally insufficient to support a conviction for depraved indifference murder, the New York State contemporaneous objection rule is not an adequate and independent state ground barring review of the instant claim, and that, alternatively, petitioner established cause and prejudice to excuse any procedural default; (2) trial counsel was ineffective in failing to move to dismiss the depraved indifference murder count on legal insufficiency grounds; and (3) appellate counsel was ineffective for failing to raise the ineffective assistance of trial counsel issue on appeal. (See generally id.) Petitioner did not argue in his reply the claim of ineffective assistance of trial counsel for failure request a § 730 psychiatric hearing. (Id.)

By Order dated April 12, 2010, the court referred the instant habeas petition to Magistrate Judge Reyes for an R&R. (See ECF No. 15, Order Referring Petition dated 4/12/2010.) Judge Reyes issued an R&R on November 18, 2010, recommending that the court grant the habeas petition in part and deny it in part. (See R&R.) Specifically, Judge Reyes recommended that the court find the legal insufficiency claim to be procedurally defaulted, and that petitioner failed to establish cause and prejudice to excuse the procedural default. (Id. at 14-19.) Judge Reyes recommended, however, that the court find that the procedural default should be excused because a fundamental miscarriage of justice would result if the court failed to reach the merits of the legal insufficiency claim. (Id. at 20-23.) Upon reviewing the merits of that claim, Judge Reyes recommended that the court, applying the New York law on depraved indifference murder in effect at the time Johnson's conviction became final, find that the evidence adduced at trial was legally insufficient to support a conviction of depraved indifference murder, and thus grant the habeas petition on this ground. (Id. at 24-33.) Finally, Judge Reyes recommended that the court deny habeas relief on all other grounds. (Id. at 13, 33-37.)

Respondent filed timely objections to Judge Reyes's R&R on December 6, 2009. (See Obj.; Obj. Mem.) Respondent argues that the court should adopt the R&R finding that petitioner failed to establish cause and prejudice to excuse the procedural default of his legal insufficiency claim, but that it should do so on different grounds, namely, that the argument in support of dismissal of the depraved indifference murder count was common at the time of Johnson's trial, even if the law had not yet begun to evolve. (Obj. Mem. at 3-4.) Respondent also argues that the court should reject the finding in the R&R that a fundamental miscarriage of justice would result if the court did not reach the merits of the legal insufficiency claim. (Id. at 4-5, 17-24.) Further, respondent argues that the court should reject the R&R finding that the court should apply the law as it existed at the time petitioner's conviction became final and that the evidence was legally insufficient to support the conviction for depraved indifference murder. (Id. at 5-17.) Respondent did not object to the remaining findings and conclusions in the R&R. (See generally id.; Obj.)

Petitioner did not file objections to the R&R. Petitioner did, however, file a reply in support of the R&R and in response to the objections filed by respondent. (See Reply to Obj.) The reply asserted that petitioner was actually innocent of the crime of depraved indifference murder, and therefore the fundamental miscarriage of justice excuse to the procedural default was applicable, and that the evidence was legally insufficient to support a conviction for depraved indifference murder. (See id.) Further, petitioner asserted that the R&R "conclusions are well reasoned and well supported by pertinent and relevant authorities, and as such the [R&R] should be fully adopted." (Id. ¶ 16.)

For the reasons stated below, the court adopts in part and modifies in part the R&R.

APPLICABLE LAW

I. Review of R&R

To the extent that a party makes specific and timely objections to a magistrate's findings or recommendations, the district court must apply a de novo standard of review to those portions of the R&R to which objection is made. See United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); 28 U.S.C. § 636(b)(1). Upon such de novo review, the 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). However, where no objection to an R&R has been filed, the district court "'need only satisfy itself that there is no clear ...


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