Opinion
PRO SE 03 Civ. 4836 (RJH) (THK).
September 29, 2005
REPORT AND RECOMMENDATION
Petitioner Maurice Daughtry was convicted after a jury trial in New York Supreme Court, Bronx County, of Manslaughter in the Second Degree, New York Penal Law § 125.15(1), Assault in the First Degree, id. § 120.10(3), Criminal Possession of a Weapon in the Second Degree, id. § 265.03(2), Criminal Possession of a Weapon in the Third Degree, id. § 265.02(4), and Reckless Endangerment in the First Degree, id. § 120.20. Petitioner was sentenced as a second felony offender to concurrent terms of imprisonment of from seven and one-half to fifteen years for the manslaughter conviction, ten years for the second degree criminal possession of a weapon conviction, five years for the third degree criminal possession of a weapon conviction, and three to six years for the reckless endangerment conviction. These sentences run consecutively with a sentence of imprisonment of eighteen years for the first degree assault conviction. Petitioner is currently incarcerated at the Clinton Correctional Facility.
Petitioner seeks habeas relief under 28 U.S.C. § 2254, claiming that (1) his justification defense was not disproven beyond a reasonable doubt; (2) the trial court's jury instruction as to the justification defense failed to properly instruct the jury on the prosecution's burden of proof; and (3) since Petitioner's weapon convictions involved the same weapon, the third degree criminal possession of a weapon conviction should have been dismissed.
This habeas corpus proceeding was referred to this Court for a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72.1(d) of the Local Civil Rules of the Southern District of New York. For the reasons that follow, the Court respectfully recommends that the Petition be denied and the case be dismissed with prejudice.
BACKGROUND
The following evidence was adduced at Petitioner's trial. On the evening of March 20, 1998, Annette "Skinner" Stevenson threw a party in her tenth floor apartment on Southern Boulevard, in the Bronx, that continued through the night and into the early morning. (See Trial Tr. vol. 1, Oct. 3, 2000 ("Tr. A"), at 262, 265, 267-68.) Fifty or sixty people attended the party. (See id. at 267.) The guests included Donald Glover, Skinner's best friend, Safara "Fatima" Lane, Skinner's daughter, Felicia "Fesha" Fralin, Skinner's niece, Terry New, a friend of Glover, and Quincy Mayhew. (See id. at 215, 263, 268, 272, 324-26, 421.) At the invitation of Fesha, Petitioner and his friends Alex Clark, Lance Williams, and Angela Washington also attended the party. (See id. at 47-50.)
When the party was winding down at around 5:00 a.m., Fatima began cleaning up and told the D.J. to turn off the music. (See id. at 201.) One of Petitioner's friends complained and challenged Fatima, asking her who she was that she could turn off the music. (See id.) Fatima retorted that she was the daughter of the woman throwing the party. (See id.) Fesha then told Fatima to "stop getting so smart before one of them smack you." (Id. at 201.) This escalated into an argument between Fatima and Fesha. (See id.) The argument eventually turned physical, at which point someone left the apartment to get Skinner and Glover, who were in the stairwell of the apartment building "smoking weed." (See id. at 269, 312.)
When Skinner returned to the apartment, she found Fesha and Fatima arguing, while Petitioner and his friends stood by watching. (See id. at 313-14.) According to Clark, Petitioner was actually attempting to break up the fight between the two cousins and while doing this, had put his hands on Fesha just as Skinner and Glover walked in. (See id. at 72.) Fesha complained to Skinner that Fatima was "disrespecting" Petitioner and his friends. (See id. at 269.) Fesha informed Skinner that Fatima had told Petitioner and his friends to leave since they were not helping clean up. (See id. at 295.) Fesha warned Fatima against "disrespecting" Petitioner and his friends because "they go around kicking people's doors in and slapping people, girls" and were "no joke." (Id. at 296-97.)
According to Clark, when Glover entered the apartment, he told Petitioner to "get your hands off them." (Id. at 73.) Skinner remembers Glover telling Petitioner and his friends that no one was going to smack or "do a motherfucking thing in here because this is all family." (Id. at 296-97). Skinner testified that Petitioner and his friends became offended, and when Petitioner began moving his hands to suggest that he wanted to fight Glover, Petitioner's friends held Petitioner back and started pulling him out of the apartment. (Id. at 298-99, 315.) Skinner told Petitioner and Petitioner's friends to leave the house. (See id.)
According to Clark, however, Glover also threatened Fesha and Petitioner saying, "I'll fuck you up and I'll fuck them up." (Id. at 73.) Clark testified that Petitioner put his hand out as if to say he had no problem with anyone, and when he did this his hand touched Glover, who told Petitioner to remove his hands. (Id. at 74-75.) Clark asserted that Petitioner repeated that he had no problem, at which point Petitioner, Clark, and Williams left the apartment. (Id.)
Skinner testified that after Petitioner left the apartment, Skinner remained in the apartment to talk to Glover. (Id. at 300.) Skinner eventually went into the hallway and told Petitioner that Glover was her "brother" and that "he didn't say anything wrong." (See id. at 301.) Petitioner replied that Glover was wrong and that he should not have tried to put the blame on them. (See id.) Skinner assured Petitioner that there was nothing to be upset about, and that noone was going to hurt Fesha. (See id.) Petitioner said "okay," indicating that he understood, and apologized "for all the wreckage and everything he had caused in the house." (Id. at 302.) Petitioner indicated he and his friends were leaving, so Skinner left them by the elevator and went back into her apartment. (See id.)
When Skinner returned to the apartment, Glover told her that he wanted to leave and go home. (See id.) Skinner, Fatima, and another person in the apartment tried to dissuade Glover from leaving. (See id. at 302, 360.) Skinner told Glover to wait a minute in order to let Petitioner and his friends leave first. (See id. at 302.) Glover refused, stating that he did not have to stay in the apartment and wanted to go home. (See id.) Glover then left the apartment and waited for the elevator. (See id. at 233.) When the elevator arrived, Petitioner and his friends, Clark and Williams, got on the elevator, followed by Glover and Mayhew. (See id. at 88-89, 203.)
There was conflicting testimony at trial as to what happened after everyone got on the elevator. New testified that she also stepped onto the elevator when it arrived, in order to prevent the doors from closing. (Id. at 203.) She told Fatima to hold the door open, so that New could try to convince Glover to get off the elevator. (Id.) New asked Glover where he was going, and when he responded that he was going home, she told him that they came together and should leave together, that "it is not worth fighting over," and that he should get off the elevator. (See id. at 254.) According to New, Mayhew and Glover then got off the elevator. (Id. at 203-04.) As Glover got off the elevator, Glover and Clark bumped each other, and exchanged words. (See id. at 254-55.) When Glover came off the elevator, Glover grabbed New by the neck and New grabbed Glover by the waist. (See id. at 259.) Then New heard Petitioner say "fuck that," at which point New heard shots ring out. (See id.) Mayhew pushed New, which caused New to fall to the floor along with Glover, who was yelling "I been shot." (Id. at 259.) As New got up and went over to Glover, she bumped Petitioner as he was coming off the elevator, and as they bumped, Petitioner "hit" New with a gun on her left side. (See id. at 209.) New then saw Petitioner go over to where Glover had fallen, and standing over him, shoot Glover in the back. (See id. at 204.)
Fatima, however, recalled that while she was holding the elevator, she herself asked Mayhew, who she testified had just come out of the staircase and was not on the elevator, to get Glover off the elevator. (See id. at 342.) Mayhew asked Glover three times to come off the elevator, but Glover refused. (See id.) Mayhew then reached into the elevator and pulled Glover off the elevator. (See id. at 342-43.) Fatima heard gunshots after Mayhew pulled Glover off the elevator. (See id. at 343.) According to Fatima, Petitioner had come up behind Glover, and then Mayhew and Glover both fell against the wall, trying to run as they headed in the direction of the apartment. (Id. at 344.)
Mayhew testified that when the elevator door was being held open, Glover got off and began walking back toward the apartment. (Id. at 432-33.) Mayhew also left the elevator and walked in the same direction as the apartment. (See id.) Then someone started shooting. (See id.)
Skinner, Fatima, and New testified that they never saw Glover or Mayhew with a gun that evening. (Id. at 257-58, 308-09, 343.)
Clark gave an entirely different account at trial. According to Clark, when Petitioner, Clark, and Williams left the apartment, the three men went to ring for the elevator. (Id. at 77, 80.) There were more than ten people from the party standing in the hallway, talking amongst themselves. (See id. at 78-79, 81.) While they were waiting for the elevator, Glover came up to Petitioner, Clark, and Williams and began arguing, saying "Yo, yo, I'll fuck you up all of you all. I'll kill you, you all crazy." (Id. at 82.) Some of the men in the hallway told Petitioner and his friends to "chill" and assured them that Glover was just drunk. (See id.) The onlookers in the hallway told Glover to do the same. (See id. at 84.) Clark informed Glover that Clark did not have a problem with him. (See id.)
According to Clark, Glover continued to argue with them until the elevator came, mostly directing his comments to Petitioner, and pointing in Petitioner's face. (Id. at 82, 87.) When the elevator arrived, Clark testified that Petitioner, Clark, and Williams got on the elevator, then Glover and two of the men from the hallway followed them into the elevator. (Id. at 89.) Then a young woman put her hand in the elevator, saying "[N]o, don't do it. Don't do it." (Id.) The woman grabbed Glover, and while she was pulling him off the elevator, Glover bumped into Clark. (See id. at 91.) Clark and Glover pushed each other for a minute. (See id. at 91, 109.) Glover then exited the elevator first, and everyone followed. (See id. at 91.)
In Clark's version of events, Petitioner and his friends also got off the elevator because they heard people being sent downstairs and commenting, "don't worry, we're going to get them downstairs." (Id. at 91-92.) As Clark got off the elevator, he noticed that everyone in the hallway now had jackets on with their hoods up, and everyone was "digging in their pockets." (Id. at 95.) It was at this point, while Petitioner, Clark, and Williams were standing by the elevator, that a shot went off. (See id. at 96.) Clark did not see where the shot came from. (See id.) He ran down the stairs, with Petitioner and Williams following behind him. (See id. at 96-97.) As Clark descended the stairs, he became tired, fell down, and let Petitioner and Williams go ahead of him. (See id. at 97-98.)
When Clark arrived in the lobby, he told the building security guard that there had been a shooting upstairs. (See id. at 113.) Clark came out of the building, but did not see Petitioner or Williams, so Clark hailed a cab. (See id.) According to Clark, as he walked toward the cab, shots were fired from the direction of the building, hitting Clark in the hand. (Id. at 114.) Clark ran around the corner and saw Petitioner and Williams about a block ahead of him. (See id. at 115.) Clark took a cab to the hospital, where he was told that, in addition to being shot in the hand, he had been shot in the lower back. (See id. at 115-17.)
The defense called two witnesses at trial, both of whom offered additional versions of the events that occurred after Petitioner, Clark, and Williams left Skinner's apartment. Angela Washington, a friend of Petitioner's who attended the party, testified that as she was waiting with Petitioner by the elevator, Glover came over and started "buggin out," which made her nervous and scared. (See Trial Tr. vol. 2, Oct. 3, 2000 ("Tr. B"), at 642, 658.) She decided not to get on the elevator and stood by the staircase, with the door open, just in case she had to run. (See id. at 643.)
Washington asserted that when the elevator came, Petitioner, Clark and Williams got on the elevator, and Glover stood to the side in the hallway. (Id. at 644.) When the elevator door was about to close, Washington let the staircase door close and started down the stairs. (See id. at 645-46.) When she got to the next landing, she heard gunshots and just stood there. (See id. at 646.) Two men came running past her, one holding something wrapped in a bandana, which appeared to be a gun. (See id. at 646-47.) Washington followed the men down the stairs. (See id. at 646.) Upon reaching the lobby, Washington went back upstairs because she feared Petitioner, Clark, and Williams were dead, and did not want to leave without knowing what happened to them. (See id. at 648.) By the time Washington returned to the apartment, the police had arrived and she saw Glover and Mayhew lying on the floor of the apartment. (See id. at 649.)
The other witness called by the defense was a close friend of Petitioner, Tamika Williams, who arrived at Skinner's apartment building at about 5:15 a.m., after returning from a club. (See id. at 682-83.) Williams testified that she waited about fifteen minutes for an elevator to take her up to the party, but when no elevator came, she and six other people decided to take the stairs. (Id. at 685.) As they climbed the stairs, two men going downstairs passed them. (See id. at 686.) Williams heard the men talking about an argument. (See id.) When Williams opened the stairwell door to the tenth floor, she saw "some kid" with dreadlocks, dressed in army clothing, pull out a gun. (See id. at 688-89.) The man with the gun said something Williams could not hear. (See id. at 693.) Williams testified that there were a lot of people in the hallway talking about fighting and yelling things like, "I am going to shoot you" and "No. No. Come on." (Id. at 695.)
Williams asserted that the man with the gun was facing Petitioner, standing two to four feet away. (Id. at 700.) As Williams went to step out into the hallway, the man pointed the gun at Petitioner and started shooting. (See id. at 695, 700-01.) According to Williams, Petitioner in turn pulled out a gun and started shooting back at the man. (Id. at 701.) Williams did not see whether anyone was shot. (See id.) Petitioner eventually ran down the stairs past Williams. (See id. at 706-07.) Williams then saw four men, including one who had picked up a gun from the floor of the hallway, chase Petitioner down the stairs. (See id. at 707-08.)
At approximately 6:22 a.m., Officer Christopher Skulsky and his partner, Officer Moore, responded to a radio call about shots fired at the address of Skinner's apartment building. (See Tr. A at 140-41). When Officer Skulsky got off the elevator at Skinner's floor, he heard a commotion and went to Skinner's apartment. (See id. at 141.) Officer Skulsky entered the apartment and saw Glover lying motionless on his back. (See id. at 142, 144.) Glover's eyes were half open, with his eyeballs rolling, his mouth slightly open, and he did not appear to be breathing. (See id.) Towards the back of the living room, Officer Skulsky observed Mayhew lying in a "fetal position," being held by a woman. (See id. at 142, 144-45.)
The EMS unit that arrived pronounced Glover dead. (See id.) As the EMS personnel checked for wounds, by rolling Glover on his left side and pulling up his shirt, Officer Skulsky noticed a gunshot wound in the center of Glover's back. (See id. at 145.) Officer Skulsky also recovered a brown-handled knife that was tucked into the left-side of Glover's waistband, with the handle sticking out. (See id. at 148.)
Later on that same morning, March 21, 1998, Detective John McMillion interviewed Fatima, Fesha, and New, and began trying to figure out who Petitioner was and where he lived. (See id. at 587). Detective McMillion's efforts to locate Petitioner included going to Petitioner's home, searching the area numerous times, speaking with Petitioner's mother and friends, traveling to Binghamton, New York and Manhattan to search for Petitioner, and putting up wanted posters. (See id. at 588-89.) None of Detective McMillion's initial attempts to locate Petitioner were successful. (See id. at 589.)
It took ten months to locate Petitioner. (See id. at 591.) Petitioner was apprehended in Baltimore, Maryland on January 21, 1999. (See id. at 589-90.) After Petitioner was read his Miranda rights, Detective Terrance McGhee and Detective McMillion then interviewed Petitioner, who gave an oral statement. (See id. at 561, 565.) Detective McGhee testified that the "sum and substance" of Petitioner's statement was that Petitioner had been invited to a party, and went there with some friends. (See id. at 565.) Toward the end of the night, Petitioner left the party, but then came back upstairs. (See id.) Petitioner told the detectives that at some point an argument broke out between two women at the party, that he intervened, and tried to break up the fight. (See id.) After the fight, Glover and Petitioner got into a confrontation. (See id.)
Petitioner related that he then left the party and waited near the elevator with his friends. (See id.) While Petitioner was waiting for the elevator, Glover came out of the apartment, but then went back inside. (See id.) When a friend of Glover's pulled out a gun, Petitioner also pulled out a gun and fired. (See id.) Petitioner asserted that he then ran downstairs, alerted security that there had been a shooting, and fled the scene. (See id.)
After being interviewed by the detectives, Petitioner drafted a written statement, which was read to the jury. The statement included Petitioner's version of what happened in the wake of the fight between Fatima and Fesha.
[W]hen I arrived back upstairs [at the apartment] arguing was going on. It was two females arguing, Fesha and some other girl. So I step[ped] in between them to break it up, and some guy grabs me from behind and tells me to get the fuck off the girls. I obey the command and let the girls go a while. At the same time explaining what I'm doing, in the effort of explaining I put my hands on the man's chest. He tells me don't touch me again. I said okay. Then walked out of the apartment to press for the elevator. I could sense this guy was looking for trouble.
So now I'm pressing for the elevator. He comes out behind me with two of his friends. There is whispering back and forth, but I can't understand. That's when the guy with the dreds, the same guy that I had words with in the apartment, walked off and went back in the apartment. On his way back I'm noticing later Skinner grabbing him, telling him not to do it. He goes in, but on his way back out he having [sic] trouble because Skinner is grabbing and fussing with him. And this whole time he is fussing and tussing with Skinner he ke[pt] his right hand in his pocket. Skinner is always crying now while they are exiting, approaching me and the elevator. I['m] already scared, wondering what's in his pocket, and what does he plan on doing with it. Being that I wasn't sure, I didn't react.
The elevator shows up now. I step on first, some other guy, then Lance, then the guy with the dreds, but Skinner is pulling harder, saying, "No, don't do it, please." They call him Don. He said, "Get off me. We are going outside." Then one of his buddies — I'm not sure, could have been someone else, yelled, "Yeah, yeah, take it downstairs." But Skinner begged him, pleaded for him not to go down. He still [sic] fighting her. That's when I told Alex, "You get on the elevator, we are out of here." Alex begin [sic] to step on when him and Don got in a tussle. After the tussle, [Don] push[ed] Alex off the elevator and stepped out going toward Alex, and now he is finally coming out, the mystery pocket. So I step off the elevator to see exactly what he has. As I'm stepping out to do that, a brown skin guy wearing green, I think it was an army fatigue. Well, any way he pulled a gun. So I pulled a gun and shot him. His gun went off, I think shot [sic] Alex. So I fired three more shots, then ran down the stairs.
Lance was behind me, but somehow Alex was in front. He stopped, let me and Lance go up ahead. I ran fast as I can to the lobby and told the security guard there is shooting upstairs and keep stepping. When I exit the building there was two guys outside. Three more shots were fired while we were running and Alex was shot for sure this time. He is crying my name, I stop, look back, but there was nothing I could do. I looked at Lance and said, "They killed Alex. What are we going to tell his parents?" And we started running again.
(Id. at 568-71.)
Medical Examiner Dr. Zoya Shmuter, who performed the autopsy on Glover, testified that Glover suffered one gunshot wound to the back. (Id. at 509, 512, 518, 529.) This gunshot wound, which went to his chest causing massive bleeding, was the cause of death. (See id. at 518.) Dr. Shmuter stated that there that was no evidence that Glover was shot at close range, because there was no gunpowder on Glover's skin. (Id. at 521.) She explained that although Glover died very quickly due to the nature of his injuries, it was possible that Glover could have taken a few steps or said something before he died. (See id. at 527-29.) Dr. Shmuter ran toxicology tests that revealed Glover had at least seven or eight drinks and had ingested marijuana and cocaine before he died. (See id. at 531-34.)
The prosecution also offered the testimony of Dr. Nicole White, an expert in trauma surgery, who reviewed Mayhew's medical records. (See id. at 538-40.) Dr. White testified that Mayhew suffered a gunshot wound to the back. (Id. at 541-43.) Dr. White further testified that Clark's medical records revealed that he had been shot three times, twice in the fingers of his right hand and in his right side toward the back. (Id. at 547-48.)
The jury found Petitioner guilty of Manslaughter in the Second Degree, Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, Criminal Possession of a Weapon in the Third Degree, and Reckless Endangerment in the First Degree. (See Trial Tr. vol. 3, Oct. 3, 2000 ("Tr. C"), at 997-99.) The jury acquitted Petitioner of Intentional Murder in the Second Degree, Depraved Indifference Murder in the Second Degree, Manslaughter in the First Degree, Attempted Murder in the Second Degree, and Intentional Assault in the First Degree. (See id.)
Petitioner, represented by counsel, appealed his conviction to the Appellate Division, First Department, arguing that (1) the People failed to disprove Petitioner's justification defense beyond a reasonable doubt; (2) the trial court's justification charge, by omitting from its summary of the justification defense that the burden was on the People to prove that Petitioner was the initial aggressor, deprived Petitioner of due process; and (3) since the two weapon possession counts involved the same weapon, the third degree count should have been dismissed in the interest of justice. The Appellate Division unanimously affirmed Petitioner's conviction. See People v. Daughtry, 298 A.D.2d 184, 748 N.Y.S.2d 47 (1st Dep't 2002).
Petitioner applied for leave to appeal to the Court of Appeals. Leave was denied on November 20, 2002. See People v. Daughtry, 99 N.Y.2d 534, 752 N.Y.S.2d 595 (2002). The instant habeas proceeding followed.
DISCUSSION
I. Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a state court conviction "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Id. § 2254(d)(2).
A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts."Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495, 1523 (2000); accord Harris v. Kuhlmann, 346 F.3d 330, 342 (2d Cir. 2003); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412, 120 S. Ct. at 1523; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197, 124 S. Ct. 1453 (2004).
A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413, 120 S. Ct. at 1523. The inquiry for a federal habeas court is not whether the state court's application of the governing law was erroneous or incorrect, but rather whether it was "objectively unreasonable." See id. at 408-10, 120 S. Ct. at 1521-22; Eze v. Senkowski, 321 F.3d 110, 125 (2d Cir. 2003); see also Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001) ("[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently. The state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable.").
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir.) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."),cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091, 124 S. Ct. 962 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003).
II. Sufficiency of the Evidence Claim
Petitioner argues that the prosecution failed to disprove beyond a reasonable doubt his justification defense.
On appeal to the Appellate Division, Petitioner also argued that the jury's verdict was against the weight of the evidence. (See Brief for Defendant-Appellant ("Pet'r App. Br."), at 27.) Petitioner has not raised such a claim in this action, and if he had, it would not provide a basis for habeas relief. A weight of the evidence claim implicates only state law. See Feliz v. Conway, 378 F. Supp. 2d 425, 430 n. 3 (S.D.N.Y. 2003) (citingCorrea v. Duncan, 172 F. Supp. 378, 381 (E.D.N.Y. 2001)). There is no federal habeas corpus relief for errors of state law. See Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 480 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102 (1990)). Therefore, a claim that the verdict was against the weight of the evidence would not be cognizable in this action.See Glisson v. Mantello, 287 F. Supp. 2d 414, 441-442 (S.D.N.Y. 2003) (holding that habeas petitioner's weight of the evidence claim was not cognizable, while denying on the merits petitioner's claim that the evidence at trial was insufficient to support his conviction); Guzman v. Fischer, No. 02 Civ. 7448 (WK) (AJP), 2003 WL 21744086, at *17 n. 37 (S.D.N.Y. July 29, 2003) (Report and Recommendation, adopted on Dec. 1, 2003) (same).
It is well-established that a "[p]etitioner bears a 'very heavy burden' in convincing a federal habeas court to grant a petition on the grounds of insufficient evidence." Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (citation omitted); accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000). Viewing the evidence "in the light most favorable to the State . . . the applicant is entitled to habeas corpus relief only if no rational trier of fact could find proof of guilt beyond a reasonable doubt based on the evidence adduced at trial." Ponnapula, 297 F.3d at 179 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)). This standard applies with equal force to a defense that the prosecution is required to disprove beyond a reasonable doubt. See Ledesma v. Cunningham, No. 03 Civ. 6322 (LAK) (GWG), 2004 WL 1775677, at *11 (S.D.N.Y. Aug. 10, 2004) (Report and Recommendation, adopted on Aug. 10, 2004). A "federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; accord Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999). A federal habeas court must therefore resolve all issues of credibility in the state's favor.See United States v. Canady, 126 F.3d 352, 356 (2d Cir. 1997);United States v. Millar, 79 F.3d 338, 344 (2d Cir. 1996); see also Henry v. Scully, 918 F. Supp. 693, 708 (S.D.N.Y. 1995) ("[I]ssues of witness credibility are to be resolved by the jury and are not to be redetermined by federal courts in a habeas corpus proceeding.") (quoting Soto v. Lefevre, 651 F. Supp. 588, 592 (S.D.N.Y. 1986)).
The Appellate Division found that the trial court's verdict was based on legally sufficient evidence. Daughtry, 298 A.D.2d at 185, 748 N.Y.S.2d at 47. It held that "[i]ssues of credibility were properly considered by the jury and there is no basis for disturbing its determination." Id. (citing People v. Gaimari, 176 N.Y. 84 (1903)). The Appellate Division further found that "[i]n rejecting defendant's justification defense, the jury properly weighed the conflicting accounts of the incident and was free to accept or reject any part of the testimony of each witness."Daughtry, 298 A.D.2d at 185, 748 N.Y.S.2d at 47. The Appellate Division's determination was not an unreasonable application of the Jackson standard.
In considering a sufficiency of the evidence claim, "a federal court must look to state law to determine the elements of the crime." Fama, 235 F.3d at 811 (citation omitted). New York Penal Law § 125.15(1) provides that "a person is guilty of manslaughter in the second degree when he recklessly causes the death of another person." New York Penal Law § 120.10(3) states that "a person is guilty of assault in the first degree when under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person." New York Penal Law § 125.25 provides that "a person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person." Petitioner does not contend that the evidence was insufficient to establish beyond a reasonable doubt the elements of each of the offenses of which he was convicted. His claim relates solely to the state's burden of disproving self-defense.
Since the defense of justification does not negate any of the elements of the crime of criminal possession of a weapon, Petitioner's claims of insufficiency of the evidence and improper jury instructions have no bearing on these convictions. See Davis v. Strack, 270 F.3d 111, 134 (2d Cir. 2001) ("Under New York Law, justification under [New York Penal Law] § 35.15 is not a defense to second degree criminal possession of a weapon."); People v. Pons, 68 N.Y.2d 264, 267 (1986) (citations omitted) ("Justification based on self-defense pertains only to the use of physical force. It does not apply to a crime based on the possession of a weapon, even though an element of the crime is that the defendant possessed the weapon with the intent to use it unlawfully against another.").
Although the Supreme Court has held that the Due Process Clause does not require the prosecution to disprove an affirmative defense, see Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 2327 (1977), under New York law, justification is a defense, rather than an affirmative defense. See Jackson v. Edwards, 404 F.3d 612, 622 (2d Cir. 2005). "[T]herefore, when the [justification] defense is raised on a proper evidentiary record, the People bear the burden of disproving it beyond a reasonable doubt." Id. (quoting Davis v. Strack, 270 F.3d at 124).
Under New York Law, a person may use deadly physical force in self-defense only under certain circumstances "where triggering conditions and the necessity of a particular response are met." See People v. Goetz, 68 N.Y.2d 96, 106, 506 N.Y.S.2d 18, 24 (1986). To succeed with a justification defense, "the fact-finder must determine that the defendant believed deadly physical force was necessary and that a reasonable person would have believed the use of deadly physical force was necessary under the same circumstances." Jackson, 404 F.3d at 623. Self-defense is not justified where the actor is the initial aggressor, or if the person's conduct was provoked by the actor himself with the intent to cause injury to another person. See New York Penal Law § 35.15(1)(a)-(b). Additionally, the use of deadly physical force is not justified unless the actor reasonably believes that the other person is using or about to use deadly physical force. Id. § 35.15(2)(a). In such a case, the actor still may not use deadly force if he or she knows retreat is possible. Id.; see also People v. Russell, 91 N.Y.2d 280, 290, 670 N.Y.S.2d 166, 169 (1998).
The evidence presented at trial was sufficient to allow reasonable jurors to conclude that the prosecution disproved Petitioner's justification defense beyond a reasonable doubt. Fatima, New, and Mayhew each testified that after Glover and Mayhew exited the elevator, shots were fired. (See Tr. A at 432-33.) Fatima and New testified that Petitioner shot Glover in the back or from behind after Glover left the elevator. (See id. at 204, 344.) Prosecution witnesses also testified that when they heard shots fired, Mayhew and Glover fell in the hallway. (See id. at 259, 344.) The testimony of the witnesses was corroborated by medical evidence, which established that both Mayhew and Glover had been shot in the back. (See id. at 518, 539-43.)
After being read his Miranda rights, Petitioner gave an oral and a written statement, which was read to the jury, in which he admitted pulling out a gun and firing into the hallway. (See id. at 565, 570.) At least three witnesses also testified that neither Glover nor Mayhew were armed that night. (See id. at 257-58, 308-09, 343.)
Although Tamika Williams testified that a man with dreadlocks pointed a gun at Petitioner and started shooting first (see Tr. B at 695-701), the jury was free to disbelieve her. Indeed, Petitioner's own statement contradicted Williams's testimony. Petitioner conceded that he started shooting when he saw someone "pull" a gun, and he never claimed the gun was pointed at him. (See Tr. A at 570.) Petitioner therefore admitted that he fired the first shots, and did not do so in response to any conduct by Glover.
Moreover, the jury was free to disbelieve Petitioner's claim that he saw someone pull a gun. And, even if he had, the jury could have concluded that firing shots at the backs of Glover and Mayhew was not a reasonable response.
Clark did not see anyone pull a gun on the tenth floor; he only saw people in the hallway "digging in their pockets." (See See Tr. A at 95.)
Petitioner's argument that an armed person pursued Petitioner, Clark, and Williams down the stairwell, and fired shots at them, does not support Petitioner's claim that he and his friends were under attack on the tenth floor. By the time they fled, at least two other people had been shot. (See Pet'r App. Br. at 25.)
In his appellate brief, Petitioner claimed that although "miffed" by Glover's response to Petitioner's attempt to break up the fight between Fatima and Fesha, Petitioner understood that he was not on his own turf and the best course of action was to make a hasty retreat. (See Pet'r App. Br. at 24.) This assertion is undercut by testimony at trial demonstrating that Petitioner passed up several opportunities to retreat via the elevator. After tension arose between Petitioner and Glover, Petitioner and his friends left the apartment. (See Tr. A at 207.) Petitioner waited in the hallway, but when the elevator came, Petitioner and his friends did not get on it. (Id.) There was further evidence that Petitioner had another opportunity to leave. Once Petitioner was joined in the hallway by Glover, the elevator came again. (Id.) Petitioner and his friends, Clark and Lance Williams, as well as Glover and Mayhew, boarded the elevator this time. (See id. at 203.) However, Mayhew and Glover proceeded to immediately get off the elevator while it remained on the tenth floor, leaving Petitioner and his friends in the elevator, which they presumably could have taken downstairs. (See id. at 203-04, 342-43.) Accordingly, drawing all inferences in favor of the prosecution, a rational jury could have concluded that Petitioner had several opportunities to retreat. See Ledesma, 2004 WL 1775677, at *13 (habeas petitioner failed to establish that no rational trier of fact could have found that justification defense was disproved beyond a reasonable doubt, because even though the jury may have believed the petitioner was not the initial aggressor, the jury could still reject petitioner's justification defense based on a finding that petitioner could have retreated). Cf. Russell, 91 N.Y.2d at 290, 670 N.Y.S.2d at 169 (holding that there was sufficient evidence to support defendants' convictions for murder where there was evidence at trial that defendants did not avail themselves of an opportunity to retreat).
Petitioner also argued in his appellate brief that he legitimately feared for his life in the hallway near the elevator. (See Pet'r App. Br. at 24.) He claims that Glover, with a knife protruding from his waistband, aggressively pursued Petitioner into the hallway and to the elevators. (See id.) Then, while at the elevator, Petitioner overheard Glover's associates threaten to ambush the group in the lobby downstairs. (See id.) Petitioner therefore got off the elevator. (See id.)
There was evidence presented at trial that several of the prosecution's witnesses attempted to restrain Glover, begging him not to leave the apartment or get on the elevator, but none of these witnesses testified that Glover threatened Petitioner once Glover entered the hallway. Rather, the only intentions expressed by Glover were that he wanted to leave the apartment and go home. (See Tr. A at 302.) Once Glover entered the hallway, there was testimony that he simply stood in the hallway, said nothing, and then boarded the elevator. (See id. at 233.) Testimony to the contrary came from Clark, Petitioner's close friend, who testified that Glover threatened Petitioner while everyone waited in the hallway (see id. at 82), and Washington, who testified that Glover came up to Petitioner in the hallway and started "buggin out." (Tr. B at 642, 658.) Yet, there was no testimony, even from Clark, that anyone saw a knife protruding from Glover's waistband while he was in the hallway or elevator.
Further, although Officer Skolsky noticed the handle of a knife protruding from Glover's waistband, the officer observed it on the body of Glover after the EMS personnel had rolled Glover's body over and pulled up Glover's shirt. (See Tr. A at 145.)
Moreover, while Clark testified that Petitioner and his friends got off the elevator after Glover exited the elevator, because they heard people saying they would go after them downstairs, Petitioner's own statement indicated otherwise. Petitioner stated that he told his friends to get on the elevator after he heard people say "take it downstairs." (Tr. A at 570.) According to Petitioner, while Glover was exiting the elevator, he pushed Clark off the elevator, after which Petitioner stepped off the elevator to see what it was that Glover had in his pocket. (Id.)
The jury was entitled to reject the statements of Petitioner and the defense's witnesses indicating that Petitioner was not the initial aggressor, and that Petitioner faced deadly physical force. The jury's determination to credit the testimony of the prosecution's witnesses over Petitioner's witnesses "is precisely the sort of determination that a federal habeas court may not second guess." Glisson, 287 F. Supp. 2d at 442.
Therefore, viewing the evidence in a light most favorable to the prosecution, a rational juror could have concluded that (1) the victims were extricating themselves from the confrontation at the elevator, (2) Petitioner was the initial aggressor, (3) Petitioner did not avail himself of the opportunity to retreat, and (4) there was no real need for Petitioner to use deadly force when he shot Glover and Mayhew in the back. Cf. Brown v. Artuz, 124 F.3d 73, 81 (2d Cir. 1997) (holding that evidence at trial established beyond a reasonable doubt that the habeas petitioner did not have right to use deadly force, regardless of any prior provocation, because the petitioner was the only person with a gun, the victim was unarmed, and nothing in the record suggested that the victim had a weapon); Thomas v. Brunelle, No. 95 Civ. 4036, 1997 WL 1068684, at *2 (E.D.N.Y. Mar. 11, 1997) (Memorandum and Order) (denying habeas corpus claim that the prosecution failed to disprove the petitioner's justification defense beyond a reasonable doubt because the jury was entitled to credit testimony that the petitioner was the initial aggressor and to reject other testimony that the victim was the initial aggressor); People v. Rosil, 240 A.D.2d 439, 440, 659 N.Y.S.2d 289, 289 (2d Dep't 1997) (holding that there was legally sufficient evidence at trial to negate the defense of justification beyond a reasonable doubt where the victim and two witnesses testified that the victim was unarmed when the defendant stabbed him, and defendant testified that he did not know whether the victim had a weapon), appeal denied, 90 N.Y.2d 910, 663 N.Y.S.2d 522 (1997).
It follows that a rational trier of fact could have concluded, based on the evidence at trial, that the prosecution had disproved beyond a reasonable doubt Petitioner's claim that he was justified in opening fire in the hallway on the tenth floor.Cf. People v. Smith, 271 A.D.2d 462, 463, 706 N.Y.S.2d 880, 880-81 (2d Dep't 2000) ("The People disproved the defense of justification beyond a reasonable doubt, as there was legally sufficient evidence to support the conclusion that the defendant was the initial aggressor and the victim was unarmed."), appeal denied, 95 N.Y.2d 871, 715 N.Y.S.2d 226 (2000); People v. Henry, 244 A.D.2d 424, 425, 664 N.Y.S.2d 315, 316 (2d Dep't 1997) (justification disproved where "the defendant was the initial aggressor and the victim was initially unarmed"), appeal denied, 91 N.Y.2d 874, 668 N.Y.S.2d 572 (1997).
Thus, this Court cannot conclude that the Appellate Division's decision, that Petitioner's conviction for manslaughter, assault, and reckless endangerment was based on legally sufficient evidence, was an unreasonable application of clearly established federal law.
Accordingly, the Court recommends that Petitioner's sufficiency of the evidence claim be dismissed.
III. Jury Instructions Claim
Petitioner contends that the trial court's jury charge on the defense of justification deprived Petitioner of due process by omitting from its summary of the justification defense that the burden was on the People to prove beyond a reasonable doubt that Petitioner was the initial aggressor. The Appellate Division held that "the court's justification charge clearly instructed the jury as to the People's burden of proof." Daughtry, 298 A.D.2d at 185, 748 N.Y.S.2d at 47. The Appellate Division did not unreasonably apply clearly established federal law in reaching that conclusion.
A state court's jury instruction "is normally a matter of state law and is not reviewable on federal habeas corpus." United States v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974). For a misstatement of law in jury instructions to merit habeas relief, "the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Davis, 270 F.3d at 123 (citation omitted). "Not every ambiguity, inconsistency or deficiency in a jury instruction rises to the level of a due process violation."Middleton v. McNeil, 541 U.S. 433, 437, 124 S. Ct. 1830, 1832 (2004) (per curiam) (citing Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475 (1991)). The question is not whether the court gave a faulty or erroneous instruction, but whether the challenged instruction "so infected the entire trial that the resulting conviction violates due process." Davis, 270 F.3d at 123 (quotingCupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400 (1973));accord Middleton, 541 U.S. at 437, 124 S. Ct. at 1832. A federal court must assess a challenged instruction "as the jury understood it, as part of the whole instruction, and indeed, as part of all the proceedings that were observed by the jury."Smalls v. Batista, 191 F.3d 272, 277 (2d Cir. 1999) (quotingChalmers v. Mitchell, 73 F.3d 1262, 1267 (2d Cir. 1996)).
The trial court's justification instruction fully explained the People's burden of disproving Petitioner's justification defense. In the body of the instruction, the court instructed the jury, "When a defendant raises such a defense offering some evidence that he was acting in self-defense, it becomes the burden of the People to prove to you beyond a reasonable doubt that he was not acting in self-defense." (Tr. C at 901.) The court also told the jury that "[t]he first duty of the jury when a defense of self-defense is raised is to determine who was the initial aggressor." (Id. at 903.) The court further advised, "The People have the burden to establish beyond a reasonable doubt that the defendant was the initial aggressor. If the proof satisfies you beyond a reasonable doubt that the defendant was in fact the initial aggressor, then according to the law, he was not and could not be acting in self-defense." (Id. at 905.)
Petitioner does not take issue with these instructions. Rather, Petitioner contends that the court blurred these instructions with an unclear summary of the justification defense. The court summarized the defense of justification as follows,
Therefore, in summary, if you conclude as the jury in this case that the defendant was the initial aggressor, you need not consider any other aspect of self-defense or justification, but you still must determine if the elements of each of the crime or crimes charged has been established beyond a reasonable doubt.
If you find that the defendant was not the initial aggressor then the burden is upon the People to prove to your satisfaction beyond a reasonable doubt that this defendant did not act in self-defense. That he did not reasonably believe that deadly force was necessary to defend himself or a third person against the imminent or immediate use of offensive deadly physical force by some other person or persons.
(Id. at 910.)
At trial, defense counsel took exception to this summary of the justification defense, arguing that the charge indicated both that the People did not have to disprove beyond a reasonable doubt that the Petitioner was not the initial aggressor, and that there was a burden on the Petitioner of proving he was not the initial aggressor. (See id. at 965-66.) The court declined to recharge the jury or take any action in response to the exception. (See id. at 966.)
In the context of the entire trial, the court's instructions on justification were clear, and its summary appears to have been intended to clarify the jury's duty once it determined whether Petitioner was the initial aggressor. Unlike the decisions cited by Petitioner in his appellate brief, this is not a case where the trial court failed to charge the jury on justification or omitted from the instruction any mention of the People's burden.See, e.g., People v. Reyes, 63 A.D.2d 917, 405 N.Y.S.2d 733 (1st Dep't 1978) (remanding for a new trial based on justification instruction that lacked any reference to the People's burden of proof); People v. Robinson, 47 A.D.2d 618, 364 N.Y.S.2d 180 (1st Dep't 1975) (where defendant was entitled to self-defense charge, sole instruction that "the burden rests on the People to establish beyond a reasonable doubt that this defendant acted with criminal intent" was inadequate); see also Jackson v. Edwards, 404 F.3d at 626 (granting habeas petition where refusal to give justification instruction violated due process by "infecting the entire trial").
Here, the trial court's jury instruction on justification clearly stated that the People bore the burden of proving whether Petitioner was the initial aggressor. The court also clearly instructed the jury that the People had the burden of disproving the Petitioner's defense beyond a reasonable doubt. While the trial court may not have used the same language in its summary as it did in the actual instruction, the court's summary on the defense of justification did nothing to modify the instruction. Despite the court's failure to remind the jury as part of its summary of the People's burden on whether Petitioner was the aggressor, the trial court's jury charge as a whole conveyed the correct rule of law for the jurors to apply. Cf. People v. Williams, 277 A.D.2d 945, 945, 716 N.Y.S.2d 241, 241 (4th Dep't 2000) (where initial charge to the jury provided complete instructions with respect to the burden of proof and reasonable doubt, the court did not abuse its discretion by failing to remind the jury in its summation that the People had the burden of proof), leave to appeal denied, 96 N.Y.2d 789, 725 N.Y.S.2d 654 (2001). Thus, the trial court's summation of the justification defense did not so infect the trial as to deprive Petitioner of due process, and the Appellate Division's decision to that effect was not an unreasonable application of federal law. See Diguglielmo v. Smith, 366 F.3d 130, 137 (2d Cir. 2004) (affirming denial of habeas relief, based on allegedly erroneous justification charge, where the Appellate Division ruled that instructions at trial as a whole properly set forth New York law); Brown v. Lord, No. 00 Civ. 4642 (JG), 2003 WL 22670886, at *5 (E.D.N.Y. Oct. 20, 2003) (Memorandum and Order) (habeas petitioner's due process claim had no merit where justification defense jury instruction as a whole fairly informed the jury of New York's initial aggressor principle);Manning v. Strack, No. 99 Civ. 3874 (RR), 2002 WL 31780175, at *7 (E.D.N.Y. Oct. 11, 2002) (Memorandum and Order) (denying due process challenge based on justification defense instruction where instructions viewed as a whole made plain that the jury's obligation was to acquit if the prosecution failed to prove beyond a reasonable doubt that the petitioner was acting in self-defense). Cf. Middleton, 541 U.S. at 437-38, 124 S. Ct. at 1833-34 (habeas relief was not warranted where state appellate court reasonably applied federal law by concluding that one faulty standard in a self-defense instruction was not reasonably likely to have misled the jury given that the remainder of the instruction was correct); Blazic v. Henderson, 900 F.2d 534, 542 (2d Cir. 1990) (district court properly denied habeas petition where trial court's failure to give a justification defense instruction would not have affected the jury's verdict); Duren v. Bennett, 275 F. Supp. 2d 374, 381 (E.D.N.Y. 2003) (petitioner was not entitled to habeas relief, based on justification defense instruction, where the trial court did not misstate the law and the Appellate Division's interpretation of the New York criminal statutes was reasonable).
For these reasons, this claim should be dismissed.
IV. Weapon Possession Sentencing Claim
In his brief to the Appellate Division, Petitioner asked the court to exercise its interest of justice jurisdiction by dismissing his conviction for third degree criminal possession of a weapon, because his second and third degree criminal possession of a weapon convictions involved the same gun. (See Pet'r App. Br. at 32.) Petitioner acknowledged to the Appellate Division that the third degree criminal possession of a weapon count was not an inclusory concurrent count with the second degree possession of a weapon charge. (Id.) Nonetheless, he asked the Appellate Division to dismiss the count in the interest of justice. See Daughtry, 298 A.D.2d at 185, 748 N.Y.S.2d at 47.
This claim is not cognizable in a federal habeas proceeding. "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States." Estelle, 502 U.S. at 68, 112 S. Ct. at 480. Petitioner does not frame his weapon possession sentencing claim in constitutional terms, or allege a violation of federal law. Nor did he do so in his appellate brief. Moreover, he did not cite to any federal cases in presenting this claim to the Appellate Division.
In any event, a New York appellate court's interest of justice review is not comparable to review for specific constitutional violations. See Smith v. Duncan, 411 F.3d 340, 348 n. 8 (2d Cir. 2005). New York C.P.L.R. § 470.15(3)(c) permits intermediate appellate courts to reverse or modify a sentence "as a matter of discretion in the interest of justice." When a state court invokes or declines its interest of justice jurisdiction, the court's decision is necessarily a matter of discretion. See Cooper v. E.S. Lefevre, No. 94 Civ. 5958 (JG), 1998 WL 386340, at *3 (E.D.N.Y. July 8, 1998) (Memorandum and Order). Here, the Appellate Division acted within its discretion. See People v. Williams, 13 A.D.3d 92, 92, 785 N.Y.S.2d 334, 334 (1st Dep't 2004) (declining to invoke interest of justice jurisdiction to dismiss the non-inclusory concurrent count, where petitioner was convicted of criminal possession of a weapon in the second and third degrees), leave to appeal denied, 4 N.Y.3d 804, 795 N.Y.S.2d 179 (2005); People v. Martinez, 8 A.D.3d 8, 10, 777 N.Y.S.2d 488, 490 (1st Dep't 2004) (same), leave to appeal denied, 3 N.Y.3d 677, 784 N.Y.S.2d 16 (2004). Compare People v. Montgomery, 293 A.D.2d 369, 371, 740 N.Y.S.2d 332, 335 (1st Dep't 2002) (vacating in the interest of justice defendant's third degree weapon possession convictions, which were based on possession of the same weapon underlying his second degree criminal possession of a weapon convictions), leave to appeal denied, 98 N.Y.2d 712, 749 N.Y.S.2d 9 (2002).
"It is not the province of a federal habeas court to reexamine state-court determinations on state law questions." Estelle, 502 U.S. at 68, 112 S. Ct. at 480. Thus, this Court is without jurisdiction to review the Appellate Division's discretionary determination. Cf. Lefevre, 1998 WL 386340, at *3 (holding that the court was without jurisdiction to review habeas petitioner's claim that the Appellate Division abused its discretion in not reviewing petitioner's claim, using its interest of justice jurisdiction).
Accordingly, Petitioner's weapon possession sentencing claim should be dismissed.
CONCLUSION
For the reasons set forth above, the Court respectfully recommends that the Petition be dismissed with prejudice. Further, because Petitioner has not made a substantial showing of a denial of a federal right, the Court recommends that no certificate of appealability be issued. See 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y.S. Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Court further recommends certification, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from the Court's order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 445-46, 82 S. Ct. 917, 921 (1962).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this report to file written objections. See also Fed.R.Civ.P. 6(a), (e). Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Richard J. Holwell, United States District Judge, and to the chambers of the undersigned, Room 1660. Any requests for an extension of time for filing objections must be directed to Judge Holwell. Failure to file objections will result in a waiver of those objections for purposes of appeal.See Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 475 (1985);IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Small v. Sec'y of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam).