United States District Court, S.D. New York
ORDER ADOPTING R&R
KENNETH M. KARAS, District Judge.
Petitioner Derrick Tigner ("Tigner"), pro se, brings a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction of murder in the second degree. (Pet. for Writ of Habeas Corpus ("Pet.") ¶¶ 1-2 (Dkt. No.2).)
On March 5, 2013, Magistrate Judge George A. Yanthis issued a Report and Recommendation, ("R&R" (Dkt. No. 20)), recommending that the Court deny Tigner's Petition in all respects. Petitioner filed a timely objection to the R&R's treatment of one of his two claims, which the Court has considered. (Pet'r's Obj. To R&R ("Pet'r's Obj.") (Dkt. No. 23).) For the reasons stated herein, the Court denies Tigner's objections to the R&R, adopts the R&R in its entirety, and dismisses Tigner's Petition.
A. Factual Background
Although the Court assumes the Parties' general familiarity with the factual and procedural background of this case as set forth in the R&R, the Court will briefly summarize the facts most salient to the Petition.
The evidence at trial established that Petitioner stabbed a Yonkers man in the chest with a knife, ( see Trial Tr. 1407-08 ("Tr.") (Dkt. No. 15)), after a verbal altercation between Petitioner and the victim's cousin, ( see id. at 1418-19). Petitioner fled the scene, ( see id. at 1429), and later recorded a video in which he boasted about the stabbing, ( see id. at 1436-1440). The victim soon died from the chest stabbing. ( See id. at 1435.) Petitioner made a phone call to inquire about the victim's condition, and the police located Petitioner by tracing his call. ( See id. at 1404-05.) When he was arrested, Petitioner possessed both the aforementioned video, ( see id. at 1441), and the knife used to stab the victim, ( see id. at 1433).
At the close of the People's case, Petitioner's counsel made a general motion to dismiss, stating that the People "failed to establish a prima facie case proving that [Petitioner was] guilty beyond a reasonable doubt." (Tr. 1186.) Petitioner's counsel renewed this motion at the end of the Defense case, contending again that the prosecution failed to establish "a prima facie case against [Petitioner]." (Tr. 1339.) The trial court denied the motion, finding that there were "sufficient questions of fact presented... to warrant submitting th[e] case to the jury." ( Id. )
On March 16, 2005, a jury convicted Petitioner of one count of murder in the second degree (New York Penal Law § 125.25(1)) and one count of criminal possession of a weapon in the third degree (New York Penal Law§ 265.02(1)). Petitioner was sentenced to an indeterminate term of 25-years-to-life imprisonment on the second-degree-murder count, to run concurrently with an indeterminate term of three-and-one-half to seven years on the criminal possession count.
B. Procedural Background
Since his conviction, Petitioner has filed multiple state and federal court appeals and petitions. The R&R contains a comprehensive catalogue of Petitioner's filings and the claims raised therein. (R&R 2-3, 5-13.) Petitioner filed his first direct appeal with the New York Supreme Court, Appellate Division on August 30, 2007, on grounds that: 1) the evidence was insufficient to establish the element of intent necessary for a conviction of second degree murder, 2) the weight of the evidence was against the jury's guilty verdict, and 3) the ineffective assistance of counsel deprived Petitioner of a complete, fair trial and a just verdict. (Resp't's Mem. of Law in Opp'n to Pet. For a Writ of Habeas Corpus ("Resp't's Mem.") Ex. C., at iv (Dkt. No. 16).) On May 27, 2008, the Appellate Division unanimously affirmed Petitioner's conviction, holding that Petitioner's "challenge to the legal sufficiency of the evidence is unpreserved for appellate review, since he failed to raise this specific contention at trial, " but that "[in any event, the evidence] was legally sufficient to establish [Petitioner's] guilt of the crime of murder in the second degree beyond a reasonable doubt." (Resp't's Mem. Ex. F, at 1 (citation omitted) (citing N.Y. Crim. Proc. Law§ 470.05(2)).) The Appellate Division found that
Petitioner's intent to cause death to the victim could be inferred from the evidence that Petitioner thrust the knife three to four inches into the victim's chest. ( Id. )It also rejected Petitioner's ineffective assistance claim, holding that "disagreement with... strategy employed by defense counsel does not amount to a deprivation of effective assistance of counsel." ( Id. at 2.) Petitioner requested leave to appeal to the New York Court of Appeals, which was denied on November 12, 2009. (Resp't's Mem. Ex. 1.) While the application for leave was pending, Petitioner requested new counsel on July 7, 2009, (Resp't's Mem. Ex. G (Status of New Assigned Counsel), at unnumbered 1), and was appointed such on September 15, 2009 (Resp't's Mem. Ex. H), "to serve and file an additional submission, " (Resp't's Mem. Ex. G (Pet'r's Application for Leave to Appeal), at unnumbered 1). However, Petitioner's newly-appointed counsel appears to have been unaware of Petitioner's November leave to appeal, and thus separately requested reconsideration and leave to appeal from the Court of Appeals. ( See Resp't's Mem. Ex. J, at 2.) The Court of Appeals granted reconsideration on March 4, 2010, and again denied Petitioner's leave to appeal. ( See Resp't's Mem. Ex. L.)
Petitioner timely filed the instant Petition on May 27, 20 II, within the one-year statute of limitations period prescribed by 28 U.S.C. § 2244(d)(1)(A). In his Petition, Petitioner asserts two grounds for relief: (1) that the evidence proffered at trial was insufficient to establish the element of intent necessary for a conviction of second degree murder, ( see Pet. ¶ 31); and (2) that Petitioner's trial counsel was ineffective because he (a) failed to attack the insufficiency of evidence regarding Petitioner's intent, ( see id at ¶ 45), and (b) failed to preserve the insufficient evidence claim for appeal, ( see id at ¶ 47).
Prior to filing his habeas petition in this Court, Petitioner filed a New York Criminal Procedure Law § 440.10(1)(h) motion to vacate judgment in the New York State Supreme Court, Westchester County, in which Petitioner alleged that trial counsel's "failure to provide proper advice concerning sentencing exposure if he accept[ed] the [Government's] plea offer, " amounted to ineffective assistance of counsel. (Letter from Pet'r to Court (June 17, 2013), unnumbered Ex. 2 ("May 19, 2013 Mot. To Vacate"), at 2 (Dkt. No. 17).) On June 17, 2013, Petitioner requested that the Court stay consideration of his habeas corpus Petition while the New York Criminal Procedure Law § 440.10(1)(h) was pending, so that Petitioner could exhaust his ineffective assistance of counsel claim and amend the Petition accordingly. ( Id at unnumbered 1, 3.) Magistrate Judge Yanthis denied Petitioner's stay request, because "Petitioner ha[d] not demonstrated good cause for delay in presenting this claim." (Dkt. No. 19); see Rhines v. Weber, 544 U.S. 269, 277-278 (2005) (holding that "[b]ecause granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the court determines there was good cause for the petitioner's failure to exhaust his claims first in state court"). Petitioner failed to appeal the denial of his stay request, and has not raised this issue in his objection to Magistrate Judge Yanthis' R&R.
Respondent filed a response to the Petition on September I, 20 II. ( See Dkt. No. 16.) Magistrate Judge Yanthis issued an R&R on August 9, 2013, recommending the Court deny the Petitioner's Petition in its entirety on grounds that Petitioner's claims were procedurally barred and because Petitioner failed to demonstrate actual innocence or cause for the procedural default. ( See R&R.) On September 13, ...