Appeal from the denial of a petition for a writ of habeas corpus in which petitioner argued that the evidence was insufficient to support his conviction for depraved indifference murder under New York law.
Before: HALL, LYNCH, and CHIN, Circuit Judges.
Petitioner-appellant Milton Garbutt was convicted in New York state court of second-degree murder on a theory of depraved indifference to human life in violation of New York Penal Law § 125.25. He appeals the judgment of the United States District Court for the Southern District of New York (Sidney H. Stein, J.) denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Garbutt contends that the evidence was insufficient to support his conviction, arguing that the killing could only properly have been found to have been intentional, and not reckless as required under New York law for a conviction of depraved indifference murder. We disagree, and affirm the district court's denial of his petition.
In view of the defendant's conviction, we summarize the facts in the light most favorable to the verdict. United States v. Riggi, 541 F.3d 94, 96 (2d Cir. 2008). In 1998, Garbutt began living intermittently with the victim, Barbara Blanchard, with whom he had a romantic relationship. The relationship was difficult; there were several physical altercations. Blanchard ended the relationship in October 1999 and removed Garbutt's belongings from her residence.
During the following week, Garbutt, now staying with a former girlfriend, Lesvia Scott, repeatedly attempted to contact Blanchard by phone. Blanchard ignored these calls. At 3:00 a.m. on November 2, 1999, Garbutt told Scott that he would confront Blanchard as she traveled to her temporary work as an election monitor in the Bronx. He left Scott's residence between 3:30 and 4:00 a.m.
Garbutt intercepted Blanchard, accompanied by her daughter Kyani Tolbert, at a bus stop at approximately 6:00 a.m. Garbutt reached across Tolbert to grab Blanchard, instructing Blanchard that "[y]ou going to talk to me now." Tr. at 139. Blanchard resisted, prompting Garbutt to pull her toward him. Tolbert grabbed her mother and attempted to pull her away from Garbutt. During the resulting struggle, Garbutt removed an eight-inch knife and stabbed at Blanchard and Tolbert, hitting Blanchard in the upper arm and chest and hitting Tolbert's jacket. Garbutt then fled the scene. Blanchard died from her wounds shortly thereafter. When Garbutt was arrested later that day, he asked after Blanchard, apparently unaware that her wounds had been fatal. II. Procedural History Garbutt was indicted for both intentional murder and reckless murder evincing a depraved indifference to human life. At the close of the People's case, Garbutt moved to dismiss the intentional murder count, arguing that "there does not appear to be any evidence of intent." Tr. at 619. After the motion was denied, the jury acquitted Garbutt of intentional murder, but convicted him of depraved indifference murder. Garbutt appealed the conviction, arguing "that his conduct clearly constituted intentional murder and did not support a finding of recklessness as required for depraved indifference." People v. Garbutt, 780 N.Y.S.2d 126, 127 (1st Dep't 2004). The Appellate Division did not agree. First, it found the argument unpreserved, since at trial Garbutt had contended not that the evidence required a finding of intent to kill, but rather that it precluded such a finding. Id. Second, even if the issue had been preserved, the court "would [have found] that the evidence with respect to depraved indifference murder was legally sufficient." Id. Leave to appeal to the New York Court of Appeals was denied. People v. Garbutt, 3 N.Y.3d 674 (2004).
Garbutt petitioned the district court for a writ of habeas corpus, arguing inter alia that the evidence was constitutionally insufficient to support a conviction for depraved indifference murder. The district court rejected the argument and denied the petition. Garbutt v. Conway, No. 05 Civ. 9898 (SHS), 2008 WL 3842967 (S.D.N.Y. August 15, 2008). Garbutt then moved for relief from that denial pursuant to Fed. R. Civ. P. 60(b), which the district court also denied. Garbutt v. Conway, No. 05 Civ. 9898 ...