David Sweet v. Floyd Bennett, Superintendent of Elmira Correctional Institution

353 F.3d 135, 2003 U.S. App. LEXIS 25849, 2003 WL 22977478

Opinions

Chief Judge WALKER concurs in a separate opinion.

F.I.PARKER, Circuit Judge.

Footnotes

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Petitioner-appellant David Sweet appeals from the amended judgment of the United States District Court for the Western District of New York (Jonathan W. Feldman, Magistrate Judge)¹ entered on January 15, 2002, denying his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Sweet’s petition was based, among other things, on a claim that he received ineffective assistance of counsel because his trial counsel failed to object when: (1) the trial court’s instructions to the jury charged Sweet with second degree murder, N.Y. Penal Law § 125.25[4], and first degree manslaughter, N.Y. Penal Law § 125.20[4], conjunctively rather than alternatively; and (2) Sweet was subsequently convicted of both counts by the jury.² The district court denied Sweet’s petition because it concluded that, even though Sweet’s trial counsel’s failure to preserve the inconsistent verdicts claim pursuant to N.Y.Crim. Proc. Law § 300.30[5] “appears to [have been] a serious blunder,” based on the state of New York law at the time of the trial, it was not objectively unreasonable for the Appellate Division to reject Sweet’s ineffective assistance of counsel claim in light of the New York case law in effect at the time of the Appellate Division’s decision.

Although we disagree with the approach the district court took to reach this result, for the reasons set forth herein we agree with the district court’s ultimate conclusion that Sweet is not entitled to habeas relief. Accordingly, we affirm the judgment of the district court.

I. BACKGROUND

Sweet’s incarceration stems from the tragic death of three-year-old Nina Fiser. Sweet was engaged to Nina’s mother, Tammy Fiser, and the three of them lived together in Farmington, New York. Nina was in the sole care and custody of Sweet when she went into cardiac and pulmonary arrest on the afternoon of April 4, 1993. Sweet called 911, and Nina was taken to a nearby hospital. However, shortly after her arrival at the hospital Nina was pronounced dead. The medical examiner later testified that Nina’s fatal injuries were consistent with “very violent blunt force” to her abdomen. Specifically, the autopsy revealed that Nina’s liver and pancreas had been torn in half, and the artery that supplies blood to the stomach, spleen, and liver was “completely severed.” Nina’s body evidenced numerous bruises of varying age.

On June 28, 1994, the Ontario County Grand Jury returned an indictment that charged Sweet with, among other things, second degree murder, N.Y. Penal Law § 125.25[4],³ and first degree manslaughter, N.Y. Penal Law § 125.20[4],⁴ in connection with Nina’s death. On October 27, 1995, following a nine-day jury trial, Sweet was convicted on both of these counts. Sweet’s trial counsel did not object to the fact that the jury charge included both of these arguably inconsistent counts. The state, on the other hand, did express concern about the possible inconsistency of the two charges, but the trial court dismissed the state’s concern. Sweet’s trial counsel also failed to object on the basis of inconsistency when the jury returned its guilty verdict.

In a post-trial motion, Sweet’s trial counsel moved to set aside the jury verdict on the ground that Sweet’s convictions were inconsistent due to the different mental states required under his statutes of conviction. The trial judge denied Sweet’s post-trial motion and sentenced him to a term of imprisonment of twenty-three years to life on the second degree murder conviction and a concurrent term of imprisonment of eight years and four months to twenty-five years on the first degree manslaughter conviction.

Represented by new counsel, Sweet appealed his conviction to the Appellate Divi sion arguing, among other things, that the trial court incorrectly charged the jury with second degree murder and first degree manslaughter in the conjunctive instead of in the alternative, and that he was deprived of effective assistance of counsel at trial, but did not assert an ineffectiveness claim on the inconsistent verdicts question. On December 30, 1996, the Appellate Division unanimously affirmed Sweet’s convictions, concluding that “the representation received by [Sweet] was meaningful,” and that Sweet’s inconsistent verdict claim was not preserved for review. People v. Sweet, 234 A.D.2d 957, 652 N.Y.S.2d 577 (4th Dep’t 1996). On May 2, 1997, the New York State Court of Appeals denied Sweet’s application for leave to appeal. People v. Sweet, 89 N.Y.2d 1101, 682 N.E.2d 996, 660 N.Y.S.2d 395 (1997).

Sweet then filed a petition in the district court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Sweet argued that he was entitled to habeas relief because he was denied his Sixth Amendment right to effective assistance of counsel due to a number of errors he claims his trial counsel made.⁵ In assessing this claim, the district court noted that “although [Sweet] alleges various errors made by trial counsel, his most compelling argument is that he was denied his right to the effective assistance of counsel when his attorney failed to timely object to the trial judge’s decision to charge depraved indifference murder ... and first degree manslaughter ... in the conjunctive.” Sweet v. Bennett, No. 98-CV-6198, slip op. at 5 (W.D.N.Y. Jan. 14, 2002). Notably though, in his appeal to the Appellate Division Sweet had not included his trial counsel’s failure to properly preserve the inconsistent charges issue as one of the alleged errors that constituted ineffective assistance of counsel. The district court recognized this fact, but nonetheless considered the merits of Sweet’s arguments on this issue. See id. at 13-14 n. 7 (“Although trial counsel’s failure to preserve the [inconsistent charges] issue was not specifically mentioned in Sweet’s appellate brief as one of the examples of inadequate representation, the Fourth Department’s decision makes clear that the appellate court was aware that the trial counsel had failed to make a timely objection to ... either the court’s decision to charge the murder and manslaughter counts in the conjunctive or the alleged repugnant verdicts.”).

After considering the merits of Sweet’s claim, the district court denied Sweet’s petition. The court noted that, based on the case law in existence at the time of Sweet’s convictions, Sweet’s trial counsel appeared to have committed a “serious blunder” when he failed to preserve the inconsistent verdicts claim. Nonetheless, the district court concluded that the Appellate Division’s decision was not objectively unreasonable because it was unclear whether Sweet suffered prejudice from this probable blunder, given the case law in existence at the time of the Appellate Division’s decision. The district court then issued a Certificate of Appealability on the issue of whether Sweet was “denied his Sixth Amendment Right to effective assistance of counsel.”⁶

II. DISCUSSION

Sweet argues that the district court erred in its analysis of the inconsistent verdicts issue, and consequently erroneously denied his habeas petition. The state takes the position that there was no error in the district court’s analysis of the inconsistent verdicts issue, and further suggests that Sweet has waived this claim because he failed to raise it before the state court. We review the district court’s denial of Sweet’s habeas petition de novo. Dixon v. Miller, 293 F.3d 74, 78 (2d Cir.2002).

The state points out that although Sweet argued in the state courts that his trial counsel was constitutionally deficient, he did not include his trial counsel’s failure to properly preserve the inconsistent charges issue as one of the bases for the ineffective assistance claim. This argument by the state is one of exhaustion, and is coupled with an issue of whether the claim would now be procedurally barred in the state courts. See 28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — -(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.”); Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir.2001) (discussing exhaustion of remedies and procedural bars in the context of a habeas corpus petition under 28 U.S.C. § 2254). Additionally, the Supreme Court has held that when a “petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,” federal habeas courts also must deem the claim procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Therefore we turn now to the question of whether Sweet’s claim would be procedurally barred in the New York courts.

A. Procedural Bar Under New York Law

New York law requires a state court to deny a motion to vacate a judgment based on a constitutional violation where the defendant unjustifiably failed to argue the constitutional violation on direct appeal despite a sufficient record. N.Y.Crim. Proc. Law § 440.10(2)(c). The purpose of this rule “is to prevent [Section] 440.10 from being employed as a substitute for direct appeal when [the] defendant was in a position to raise an issue on appeal ... or could readily have raised it on appeal but failed to do so.” People v. Cooks, 67 N.Y.2d 100, 103, 491 N.E.2d 676, 678, 500 N.Y.S.2d 503, 505 (1986). New York courts have held that some ineffective assistance claims are “not demonstrable on the main record” and are more appropriate for collateral or post-conviction attack, which can develop the necessary evidentiary record. People v. Harris, 109 A.D.2d 351, 360, 491 N.Y.S.2d 678, 687 (2d Dep’t 1985) (collecting cases); see also People v. Brown, 45 N.Y.2d 852, 382 N.E.2d 1149, 410 N.Y.S.2d 287 (1978).

However, the alleged error that is the basis for Sweet’s ineffectiveness claim was particularly well-established in the trial record. Trial counsel plainly failed to object on inconsistency grounds to charging the counts in the conjunctive. Sweet has not offered a reason, and we see none, suggesting that appellate counsel would have needed a new evidentiary hearing to develop this claim. Sweet chose to bring his other ineffective assistance of counsel claims on direct appeal, so he cannot claim that he was consolidating all of his Sixth Amendment claims for one collateral attack with the benefit of a new evidentiary record for those other claims.

Moreover, we have held in a case similar to Sweet’s, where the trial record provided a sufficient basis for the ineffective assistance claim on trial counsel’s failure to object to a jury charge, that such a claim did not fall within any of the exceptions noted by the New York courts. Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.1997). More recently, in reviewing a habeas petition claiming ineffective assistance for failing to object on double jeopardy grounds, we again ruled that § 440.10(2)(c) barred such a collateral attack when the defendant unjustifiably faded to raise the ineffective assistance issue on direct appeal. Aparicio, 269 F.3d at 91.

Thus we conclude that Sweet’s appellate counsel unjustifiably failed to argue this ineffective assistance claim on direct appeal despite a sufficient record, and consequently waived the claim under § 440.10(2)(c). Accordingly, Sweet’s claim is procedurally defaulted for the purposes of federal habeas review as well.

B. The Supreme Court’s Recent Decision in Massaro v. United States Does Not Change This Result

We note that there is nothing in Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), that disturbs this conclusion. In Massaro, the appellant challenged the validity of this Court’s decision in Billy-Eko v. United States, 8 F.3d 111 (2d Cir.1993), where we held that when a habeas petitioner pursuant to § 2255 is represented by new counsel on appeal and the ineffective assistance claim is based solely on the record made at trial, the claim must be made on direct appeal; otherwise, the defendant has procedurally defaulted the claim. The Supreme Court abrogated this rule and held that in § 2255 petitions there is no procedural default for failure to raise an ineffective assistance claim on direct appeal. Massaro, 123 S.Ct. at 1694-95.

However, Massaro is not a constitutional decision, and by its own language it did not extend its rule beyond § 2255. See, e.g., id. at 1696 (“We do hold that failure to raise an ineffective assistance-of-eounsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255.” (emphasis added)). Section 2254, unlike § 2255, contains an exhaustion rule, 28 U.S.C. § 2254(b)(1)(A), as well as a rule requiring deference to state courts, 28 U.S.C. § 2254(d), underscoring the necessity that defendants raise their claims in state courts first. Massaro does not address the concerns of comity and federalism, essential to § 2254 and the independent and adequate state ground doctrine. As the Supreme Court explained in Coleman:

In the [§ 2254] habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court’s jurisdiction and a means to undermine the State’s interest in enforcing its laws.

Coleman, 501 U.S. at 730-31, 111 S.Ct. 2546. Nothing in Massaro alters our view that it remains inappropriate and inefficient to allow state defendants to bypass state courts on the substance of state rules, and bring federal habeas challenges without the benefit of state decisions on those state rules. Sweet’s case demonstrates the appropriateness of requiring that state prisoners bring complicated state law issues to state courts first, so that the states, rather than the federal courts, can address and resolve those complexities.

In support of its decision in the § 2255 context, Massaro explained that “[t]he procedural default rule is neither statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law’s important interest in the finality of judgments.” 123 S.Ct. at 1693. As distinct from the situation in Massaro and viewing this matter through the lens of § 2254, Sweet’s claim is barred by an independent and adequate state ground, a default rule established by New York statute, and not court-created doctrine. See N.Y.Crim. Proc. Law § 440.10(2)(c). The application of Massaro to this case would allow a § 2254 petitioner to circumvent and thus disrespect the New York legislature’s choice to conserve judicial resources, subverting the values of comity and federalism embraced by Coleman.

We note that Sweet’s ineffectiveness claim presents almost a paradigmatic example of a trial record that plainly establishes the basis for an argument that counsel’s performance was deficient and prejudicial. Counsel’s failure to object is preserved in the trial record, and the issue of prejudice is a purely legal question of interpreting New York precedents. We do not see how the defendant’s claim could have benefitted further from separate fact finding in a § 440 hearing. New York is free to adopt a rule allowing defendants with multiple ineffectiveness claims to consolidate them for a § 440 motion, even when some of those claims were sufficiently developed for direct appeal. However, we know of no such rule in New York, and, as we noted above, Sweet chose to bring other ineffective assistance claims on his direct state appeal. Sweet, 652 N.Y.S.2d at 577.

C. Actual Innocence

The conclusion that Sweet’s claim is procedurally defaulted does not end our analysis. A habeas petitioner may avoid such a default as this by showing cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, ie., the petitioner is actually innocent. See Coleman, 501 U.S. at 748, 111 S.Ct. 2546; Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Aparicio, 269 F.3d at 90. Sweet does not argue cause and prejudice, nor do we see any basis in the record for such an argument.⁷ Thus Sweet could only avoid the consequences of his procedural default on this claim if he could show that he is actually innocent.

The Supreme Court has explained that the fundamental miscarriage of justice exception is “extremely rare” and should be applied only in “the extraordinary cases.” Schlup v. Delo, 513 U.S. 298, 321-22, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). “ ‘[Actual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). “To establish actual innocence, [a] petitioner must demonstrate that, ‘in light of all the evidence,’ ‘it is more likely than not that no reasonable juror would have convicted him.’ ” Id. (citing Schlup, 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (some internal citation marks omitted)).

Although Sweet did not explicitly make an actual innocence claim, he arguably raised this issue as part of his ineffectiveness claim. For example, Sweet argued that:

[He] was charged with second degree murder, a crime that requires a finding beyond a reasonable doubt that he acted recklessly. He was also charged with first degree manslaughter, a charge that requires he act intentionally. The language in the indictment is identical: that his act was applying blunt force trauma to Nina, the result was the laceration of liver and spleen and, subsequently, death.... It is as though he were charged with driving his car into a telephone pole negligently and intentionally at the same time. He just can’t.

Appellant’s Br. at 8-9. Under this theory, Sweet had to be “actually innocent” of one of the two charges because he could not have acted both intentionally and recklessly with respect to the same result.

However, because “actual innocence” means factual innocence rather than just legal insufficiency, the question does not turn on whether Sweet’s counsel could have made a successful objection to the jury charge or verdict based on New York procedural law. Instead, the question depends on whether it is more likely than not that no reasonable juror would have concluded that Sweet engaged in conduct that meets the required elements of each of the charges. See Bousley, 523 U.S. at 623,118 S.Ct. 1604. Because there was evidence of multiple blows and injuries, the jury could have concluded that this evidence demonstrated a series of intentional physical injuries, culminating in one final blow that demonstrated the reckless creation of a grave risk of serious physical injury or death. The fact that Sweet was convicted of committing an act with the intent to cause physical injury to Nina does not rule out the possibility that he also unintentionally (and recklessly) created a risk of Nina’s death. Thus, a reasonable juror could have concluded that Sweet committed at least one act that recklessly created a grave risk of serious physical injury⁸ or death to Nina in violation of N.Y. Penal Law § 125.25[4], and committed at least one other act with an intent to cause physical injury⁹ to Nina while recklessly creating a grave risk of serious physical injury to her in violation of N.Y. Penal Law § 125.20[4]. Accordingly, we need not address whether Sweet would have a meritorious actual innocence claim if both convictions had been based on the same single act, or whether Sweet’s convictions were inconsistent under N.Y.Crim. Proc. Law § 300.30.¹⁰

III. CONCLUSION

For the foregoing reasons, we conclude that Sweet’s petition for a writ of habeas corpus was properly denied. Accordingly, we AFFIRM the judgment of the district court dismissing, with prejudice, Sweet’s ineffective assistance claim based upon counsel’s failure to object on the ground that the verdicts were inconsistent.

Judge Parker was the principal author of the opinion of the Court.

1

. The magistrate judge (hereafter also referred to as the district court) was acting by consent of the parties pursuant to 28 U.S.C. § 636(c).

2

. Sweet's counsel could have objected on inconsistency grounds both to the jury charge before it was given, and to the jury verdict after it was rendered. Although an "inconsistent charge” objection and an "inconsistent verdict” objection can involve different issues, they are often discussed interchangeably by the New York courts. See, e.g., People v. Robinson, 145 A.D.2d 184, 538 N.Y.S.2d 122 (4th Dep't 1989), aff'd, 75 N.Y.2d 879, 553 N.E.2d 1021, 554 N.Y.S.2d 473 (1990). Because the parties and the district court have discussed the issue in this case interchangeably as both one of inconsistent charges and inconsistent verdicts we do not distinguish between the two terms in our discussion of the issue.

3

. "A person is guilty of murder in the second degree when: ... Under circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person.” N.Y. Penal Law § 125.25[4],

4

. "A person is guilty of manslaughter in the first degree when: ... Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly engages in conduct which creates a grave risk of serious physical injury to such person and thereby causes the death of such person.” N.Y. Penal Law § 125.20[4],

5

. Sweet also argued that his due process rights were violated and that he was denied a fair trial because he was charged with second degree murder and first degree manslaughter in the conjunctive instead of in the alternative. The district court rejected this argument. Because the Certificate of Appealability does not include this issue, we do not address it in this appeal. See Smaldone v. Senkowski, 273 F.3d 133, 139 (2d Cir.2001) (holding that appellate jurisdiction is limited to the issues contained in the certificate of appealability).

6

. In its entirety, the Certificate of Appealability certified the question of whether Sweet was "denied his Sixth Amendment Right to effective assistance of counsel based on several deficiencies in his trial counsel's performance." In his appeal to this Court, however, Sweet only raises a single ineffective assistance of counsel claim, premised on his trial counsel's failure to object when the trial court charged the jury with second degree murder and first degree manslaughter in the conjunctive, rather than in the alternative.

7

. The only potential claim for cause for default that we see would be appellate counsel's ineffective assistance. However, the Supreme Court has held that such cause is an “independent constitutional claim” that first must be raised in state court. Edwards v. Carpenter, 529 U.S. 446, 451-52, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). Thus, Sweet could not use ineffective assistance of appellate counsel as “cause” for his procedural default in this case, because Sweet has not brought a claim in state court based on the notion that his counsel in the state appellate proceedings was ineffective. In New York, coram nobis is the appropriate remedy for ineffective assistance of appellate counsel. Aparicio, 269 F.3d at 87 n. 1 (citing People v. Bacherl, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318 (1987)).

8

. "Serious physical injury” is defined as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” N.Y. Penal Law § 10.00[10],

9

. "Physical injury” is defined as "impairment of physical condition or substantial pain.” N.Y. Penal Law § 10.00[9].

10

. Chief Judge Walker addresses the merits of Sweet's section 330.30 claim and New York’s doctrine of inconsistent verdict in his concurrence.