United States District Court, E.D. New York
MEMORANDUM & ORDER
MARGO K. BRODIE, District Judge.
Petitioner Dyshawn White brings the above-captioned petition pursuant to 28 U.S.C. § 2254, in which he alleges that he is being held in state custody in violation of his federal constitutional rights. Petitioner's claims arise from a judgment of conviction after a jury trial in New York State Supreme Court, Kings County, for manslaughter in the first degree, criminal possession of a weapon in the second degree and reckless endangerment in the first degree. Petitioner was sentenced to concurrent prison terms of twenty-five years for manslaughter, fifteen years for criminal possession of a weapon and three-and-a-half to seven years for reckless endangerment. Petitioner appealed his conviction to the New York Appellate Division, Second Department, claiming that: (1) the trial court's jury charge erroneously permitted the jury to find him guilty of manslaughter in the first degree and reckless endangerment in the first degree of the same decedent; and (2) he was denied his constitutional rights to a fair trial because he was not allowed to confront the witnesses who identified him as the shooter. The Appellate Division found Petitioner's claims unpreserved for appellate review and affirmed his conviction. People v. White, 854 N.Y.S.2d 758, 759 (App. Div. 2008). The New York Court of Appeals denied leave to appeal. People v. White, 10 N.Y.3d 940 (2008). Petitioner raises the same claims in the instant petition. Petitioner also moves to hold the petition in abeyance to allow him to exhaust a claim of ineffective assistance of counsel. For the reasons set forth below, Petitioner's motion to hold the petition in abeyance is denied and the petition is denied.
The evidence at trial established that on October 4, 2004, between 5:00 p.m. and 6:00 p.m., Petitioner was sitting on a park bench with Tiffani Steele and Dominique Hunter, in Brownsville, Brooklyn. (Resp. Aff. Ex. 3, Parts 4-6, Transcript of Trial ("Tr.") 126:4-127:10.) Aaron Nathaniel, a friend of the Petitioner, Nathaniel's two children and Hunter's child were nearby. ( Id. ) Nathaniel left his children with Hunter, Steele, and Petitioner to go to a nearby store and when Nathaniel returned, Petitioner told Nathaniel that he had placed a gun inside the stroller belonging to Nathaniel's children. ( Id. at 178:7-12.)
Harry Adams and his brother, decedent Tranell Williams, approached Petitioner while Petitioner was sitting on the bench. ( Id. at 46:22-25; 47:2-3.) The brothers wanted to speak with Petitioner about an incident that had occurred a few weeks earlier, in which Adams had allegedly physically beaten Petitioner's uncle. ( Id. at 45:4-5.) Shortly after the men began speaking, Petitioner retrieved a gun from the stroller and placed it on his lap. ( Id. at 52:1-53:1.) Steele and Hunter took the children and left to go to Steele's home in a nearby building. ( Id. at 11:6-12:20.) Adams and Williams tried to explain to Petitioner that Adams was not involved in the assault of Petitioner's uncle. ( Id. at 51:19-20, 55:1-6) Petitioner then stood up and fired one shot towards the ground. ( Id. at 56:5-6.) The brothers began to run in different directions and Petitioner fired two more shots while they were running. ( Id. at 56:9-15.) One bullet struck Williams in the back. ( Id. at 70:9-15.) Adams later found Williams in the lobby of a nearby building, where he had collapsed. ( Id. at 58:20-59:24.) Williams was transported by ambulance to a nearby hospital, where he died as a result of the gunshot wound. ( Id. at 70:19-71:24.)
Detective Paul Parsekian arrived on the scene shortly after Williams was transported to the hospital. ( Id. at 249:22-250:18.) While conducting an investigation, Detective Parsekian spoke with unnamed witnesses who identified the Petitioner by name as the shooter. ( Id. at 251:17-18, 252:9-18.) The police apprehended Petitioner on October 11, 2004. ( Id. at 253:19-25.) Detective Parsekian conducted two consecutive line-up identifications, hours apart. ( Id. at 255:13-24.) Adams and Steele each identified Petitioner as Dyshawn White from these line-ups. ( Id. at 255:13-22.)
At trial, Parsekian testified that, after speaking with "witnesses regarding this incident, " he was able to identify Petitioner by name as the suspected shooter. ( Id. at 251:17-252:21.) Petitioner's trial counsel did not object to this testimony. ( Id. ) Detective Parsekian testified that both Adams and Steele had known Petitioner prior to the day of the shooting, and that Steele did not identify Petitioner as the shooter from the line-up, but only identified him as Dyshawn White. ( Id. at 268:10-24.)
The trial court charged the jury on the law for murder in the second degree, manslaughter in the first degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree. ( Id. at 332:14-338:11.) The trial court instructed the jury that in order to find Petitioner guilty of murder in the second degree, the jury had to find that Petitioner had acted with the "intent to cause the death of another person, " and that the term "intent" meant "conscious objective or purpose." ( Id. at 332:14-25.) The court also instructed the jury that in order to find the Petitioner guilty of manslaughter in the first-degree, it had to find that Petitioner "acted with the intent to cause serious physical injury to Williams and caused his death, " and that the term "intent" was defined as a person's "conscious aim or objective." ( Id. 334:12-14.) The trial court further instructed the jury that in order to find Petitioner guilty of reckless endangerment in the first degree, it had to find that Petitioner "recklessly engaged in conduct which created a grave risk of death to another person by firing a weapon on a street with other persons... under circumstances evincing a depraved indifference to human life." ( Id. 339:21-340:2.) The court defined "recklessly" as "engag[ing] in conduct which creates a substantial, unjustifiable and grave risk of death to another person, and when he is aware of and consciously disregards that risk...." ( Id. 338:12-17.)
Petitioner's trial counsel objected to the court's reckless endangerment charge, arguing that the "People had to elect a theory of their prosecution" - i.e., that the People had to choose either an "intentional" or "reckless" theory of prosecution. ( Id. 343:14-20.) The trial court overruled counsel's objection, stating, "[T]hey both have to go to the jury, both counts have to go to the jury." ( Id. 343:21-22.) Later, while the jury was out of the room in deliberations, the court clarified to the parties remaining in the room that the reckless endangerment charge was made with reference to shooting "in the direction of other people, that there were other people in the street... [s]o it's not the same concept as the murder in the second degree." ( Id. 351:15-352:1.) The jury acquitted Petitioner of murder in the second degree, but found him guilty of manslaughter in the first degree, criminal possession of a weapon in the second degree and reckless endangerment in the first degree. ( Id. at 352:9-353:13.) Petitioner was sentenced to concurrent terms of twenty-five years of imprisonment on the manslaughter charge, fifteen years on the weapon-possession charge, and three-and-a-half years to seven years on the reckless endangerment charge. (Resp. Aff. Ex. 3 Part 6, Transcript of Sentencing Hearing at 14:4-10.)
Petitioner appealed to the Appellate Division, arguing that the court's jury instruction failed to limit the reckless endangerment charge to the creation of a grave risk of death to a person other than the decedent, which erroneously permitted the jury to find the Petitioner guilty of both first-degree manslaughter and reckless endangerment, because they required inconsistent states of mind. (Resp. Aff. Ex. 1, Petitioner's Appellate Division Brief ("Pet. App. Brief") 12.) Petitioner argued that the evidence presented at trial indicated that not enough other people were present for Petitioner's alleged actions to have created a grave risk of death to anyone other than the decedent, and that since the jury had found Petitioner guilty of the intentional killing of Williams, the charge erroneously permitted them to also find Petitioner guilty of acting with depraved indifference to a grave risk of death by shooting toward Williams. ( Id. at 13-14.) Petitioner further argued that he was denied his constitutional right to a fair trial when Detective Parsekian was permitted to testify that he identified and ultimately arrested Petitioner as the shooter based on his interviews of unidentified witnesses on the day of the shooting. ( Id. at 18-21.)
On April 1, 2008, the Appellate Division affirmed the judgment of the lower court. White, 854 N.Y.S.2d at 758. The Appellate Division held that Petitioner's claim regarding the reckless endangerment charge was unpreserved pursuant to the New York contemporaneous objection rule and declined to review the claims in the interest of justice. Id. at 759. The Appellate Division found that although Petitioner had objected to the submission of manslaughter and reckless endangerment counts as based on inconsistent states of mind, he had not objected specifically to the trial court failing to limit the reckless endangerment charge to the creation of a grave risk of danger to persons other than the decedent and that, at any rate, the "verdict of guilt was not against the weight of the evidence." Id. The Appellate Division also found that Petitioner's remaining [fair trial] claim was unpreserved for appellate review, and declined to review that claim "in the exercise of [its] interest of justice jurisdiction." Id. The New York Court of Appeals denied leave to appeal. White, 10 N.Y.3d at 940.
Petitioner filed this petition on November 4, 2008, asserting the same arguments as he did before the Appellate Division, that: (1) the trial court's jury charge erroneously permitted the jury to find him guilty of both manslaughter and reckless endangerment of the same person, even though the charges require inconsistent states of mind; and (2) he was denied his constitutional rights to a fair trial when Detective Parsekian testified that he identified and arrested Petitioner as the suspect after speaking with unidentified witnesses. (Petition at 8.) Respondent opposes the petition on the grounds that: (1) the Appellate Division rejected these claims on independent and adequate state grounds - New York's contemporaneous objection rule, (Resp. Mem. 1-4), and (2) in any event, the claims were without merit. ( Id. at 4.) In his reply, Petitioner argues that: (1) the state appeals court decision did not clearly and expressly state that its judgment rested on a procedural bar; and (2) there was cause and prejudice for Petitioner's procedural default. (Pet. Reply 3-6.) Petitioner asserts that his trial counsel's failure to object and preserve the constitutional claims at the trial court level deprived him of his Sixth Amendment right to the effective assistance of counsel. ( Id. at 4.) Petitioner also requests that the Court hold the habeas petition in abeyance to allow him to exhaust his claim of ineffective assistance of counsel to serve as cause to excuse the procedural default. (Pet. Letter dated June 20, 2011.)
a. Standard of ...