Persad v. Conway

Second Circuit

Persad v. Conway

368 F. App'x 265

CourtCourt of Appeals for the Second Circuit

DecidedMarch 8, 2010

Docket08-1289-pr

StatusUnpublished

Cited by2 cases

This text of 368 F. App'x 265 (Persad v. Conway) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Persad v. Conway, 368 F. App'x 265 (2d Cir. 2010).

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Opinion

SUMMARY ORDER

Seruanine Persad appeals the judgment of the district court denying his petition for a writ of habeas corpus. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Persad contends that the jury charge was unbalanced to such an extent, and infected his trial with such unfairness, that his conviction must be vacated. To succeed on his claim, Persad must establish that: (1) the jury charge was unbalanced in violation of New York law; (2) the unbalanced charge violated Persad’s Four *266 teenth Amendment right to due process; and (3) habeas relief is available pursuant to 28 U.S.C. § 2254(d). See Harris v. Alexander, 548 F.3d 200, 203 (2d Cir.2008).

Although we conclude that the charge was unbalanced in violation of New York law, see People v. Williamson, 40 N.Y.2d 1073, 1074, 392 N.Y.S.2d 255, 360 N.E.2d 933 (N.Y.1976); People v. Bell, 38 N.Y.2d 116, 123, 378 N.Y.S.2d 686, 341 N.E.2d 246 (N.Y.1975), we nonetheless affirm because Persad suffered no deprivation of due process. The decisive inquiry is whether the unbalanced instruction, understood in the context of the charge and the trial as a whole, see Gaines v. Kelly, 202 F.3d 598, 606 (2d Cir.2000), “by itself so infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); see also Jackson v. Edwards, 404 F.3d 612, 624 (2d Cir.2005) (framing the issue as whether the instruction was “sufficiently harmful to make the conviction unfair.” (internal quotation marks omitted)).

Here, the prosecution adduced overwhelming evidence of Persad’s guilt, including the testimony of multiple witnesses, positive identifications (both during the investigation and in-court during trial), Persad’s own statement, and Persad’s flight upon learning that he was under investigation for the shooting. In light of this evidence, the unbalanced charge did not deprive Persad of his due process rights under Cupp.

Finding no merit in Persad’s remaining arguments, we hereby AFFIRM the judgment of the district court.

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SUMMARY ORDER

Seruanine Persad appeals the judgment of the district court denying his petition for a writ of habeas corpus. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Persad contends that the jury charge was unbalanced to such an extent, and infected his trial with such unfairness, that his conviction must be vacated. To succeed on his claim, Persad must establish that: (1) the jury charge was unbalanced in violation of New York law; (2) the unbalanced charge violated Persad’s Four *266 teenth Amendment right to due process; and (3) habeas relief is available pursuant to 28 U.S.C. § 2254(d). See Harris v. Alexander, 548 F.3d 200, 203 (2d Cir.2008).

Although we conclude that the charge was unbalanced in violation of New York law, see People v. Williamson, 40 N.Y.2d 1073, 1074, 392 N.Y.S.2d 255, 360 N.E.2d 933 (N.Y.1976); People v. Bell, 38 N.Y.2d 116, 123, 378 N.Y.S.2d 686, 341 N.E.2d 246 (N.Y.1975), we nonetheless affirm because Persad suffered no deprivation of due process. The decisive inquiry is whether the unbalanced instruction, understood in the context of the charge and the trial as a whole, see Gaines v. Kelly, 202 F.3d 598, 606 (2d Cir.2000), “by itself so infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); see also Jackson v. Edwards, 404 F.3d 612, 624 (2d Cir.2005) (framing the issue as whether the instruction was “sufficiently harmful to make the conviction unfair.” (internal quotation marks omitted)).

Here, the prosecution adduced overwhelming evidence of Persad’s guilt, including the testimony of multiple witnesses, positive identifications (both during the investigation and in-court during trial), Persad’s own statement, and Persad’s flight upon learning that he was under investigation for the shooting. In light of this evidence, the unbalanced charge did not deprive Persad of his due process rights under Cupp.

Finding no merit in Persad’s remaining arguments, we hereby AFFIRM the judgment of the district court.

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