Gaines v. Kelly

Citation202 F.3d 598
Decision Date01 August 1998
Docket NumberDocket No. 96-2761
Parties(2nd Cir. 2000) JOSEPH MARTIN GAINES, Petitioner-Appellant, v. WALTER R. KELLY, Respondent-Appellee
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

GAIL JACOBS, Great Neck, New York, for Petitioner-Appellant.

THOMAS H. BRANDT, Assistant District Attorney, Lockport, New York (Matthew J. Murphy, III, District Attorney, County of Niagara, Lockport, New York, of counsel), for Respondent-Appellee.

Before: CARDAMONE, JACOBS, Circuit Judges, and CARMAN*, Judge

CARDAMONE, Circuit Judge:

Joseph Martin Gaines (petitioner or appellant) appeals the judgment entered on August 30, 1996 in the United States District Court for the Western District of New York, before Judge Richard J. Arcara, denying his petition for a writ of habeas corpus under 28 U.S.C. 2254 (1994). Petitioner sought his release from state custody contending that the state trial court's instructions defining the term "proof beyond a reasonable doubt," which it gave to the jury that convicted him, denied him due process.

The appeal focuses on those instructions that purported to define the meaning of beyond a reasonable doubt seven different ways. It is our policy in general to discourage a trial court from an attempt to define beyond a reasonable doubt because such attempts to clarify the term more often than not promote confusion rather than clarity, and thereby lead a jury to misapply the standard of proof. This happened in the present case where, reading the charge as a whole, we are persuaded that there is a reasonable likelihood that the seven different definitions caused the jury to apply the reasonable doubt standard in an unconstitutional manner.

Gaines points to a number of phrases in the reasonable doubt charge that, he asserts, impermissibly lowered the prosecution's burden of proof or shifted the burden of proof to the defense. The cumulative effect of the repeated irregularities in the reasonable doubt charge creates a strong likelihood that the jury understood the instructions to allow defendant's conviction based on proof insufficient to meet constitutional standards, regardless of whether the challenged phrases, viewed in isolation from each other, are sufficiently defective to merit reversal of Gaines' conviction. The defective jury instructions impaired the fundamental fairness of the criminal proceeding that led to Gaines' conviction warranting habeas corpus relief.

We have already granted such relief when we reversed the judgment of the district court on June 4, 1999 on the grounds that the reasonable doubt instruction was constitutionally defective; we further ordered that petitioner be granted either a new trial or his release. Our reasons for granting such relief are set out in the opinion that follows.

BACKGROUND

In the early morning hours of February 1, 1982 Gaines broke into the Apex Grocery Store in Niagara Falls, New York, took some coffee and batteries off the store shelves, and set the store on fire. Upon arriving at the scene, firefighters immediately began searching for occupants in the apartment located above the burning grocery store. One firefighter became entrapped inside the burning building and died as a result.

A month later, on March 12, 1982 petitioner was indicted by a grand jury in Niagara County Court on five counts for his alleged role in the arson, and a jury trial was held on four charges (one having been dismissed) in the Niagara County Court (Charles J. Hannigan, J.). Gaines was found guilty on September 27, 1982 on the four counts of murder in the second degree, arson in the third degree, burglary in the third degree, and petit larceny, and sentenced on October 27, 1982 to a term of imprisonment of 20 years to life with three lesser terms running concurrently.

Petitioner promptly appealed this conviction to the New York State Supreme Court, Appellate Division. In 1983 the Niagara County Public Defender's Office was assigned to perfect the appeal. But it failed to file a brief on his behalf until five years later, on March 9, 1988. Gaines filed a pro se supplemental brief in the Appellate Division arguing that the trial court's instructions defining reasonable doubt were constitutionally infirm. The Appellate Division affirmed the judgment of conviction, see People v. Gaines, 143 AD2d 520, 521 (4th Dep't 1988), and the Court of Appeals denied leave to appeal on December 5, 1988. See People v. Gaines, 73 NY2d 855 (1988).

On December 28, 1987 while awaiting the perfection of his appeal to the Appellate Division, Gaines filed a petition for a writ of habeas corpus in the United States District Court for the Western District of New York, claiming ineffective assistance of appellate counsel and denial of his right to appeal arising from the five year delay. The district court referred the matter to a magistrate judge who recommended finding that the delay in Gaines' appeal had violated the Constitution, but that the appropriate relief was an action under 42 U.S.C. 1983, not a habeas petition. The district court adopted the magistrate judge's report and recommendation but Gaines never filed a 1983 action.

In 1993 petitioner filed a second habeas petition in the same district court under 28 U.S.C. 2254, asserting this time that the state trial court's instructions defining reasonable doubt had deprived him of his due process right to a fair trial. On December 9, 1994 Judge Arcara referred the case to a different magistrate judge who recommended denying Gaines' petition and issuing a certificate of appealability. Again, the district court adopted the magistrate judge's report and recommendation, but it declined to issue a certificate of appealability. Judgment was thereupon entered denying Gaines' habeas petition.

In September 1996 petitioner filed a notice of appeal to this Court, but the appeal was dismissed for failure to comply with the Civil Appeals Management Plan. Nearly two years later, on August 6, 1998 we granted Gaines' subsequent pro se motion for a certificate of appealability, but only "as to the claim that appellant was denied due process by the trial court's reasonable doubt jury charge." Gaines' counsel was also directed "to address the issue of whether appellant's due process claim is based on a new rule of law, see, e.g., Cage v. Louisiana, 489 U.S. 38 (1990), and if it falls within an exception recognized in Teague v. Lane, 489 U.S. 288 (1989)." This appeal followed.

DISCUSSION
I Standard of Review

On appeal the grant or denial of a petition for a writ of habeas corpus is reviewed de novo. See English v. Artuz, 164 F.3d 105, 108 (2d Cir. 1998). To obtain habeas relief petitioner must demonstrate by a preponderance of the evidence that his federal constitutional rights were violated. See id.

II Retroactivity

As a general rule, "we will not disturb a final state conviction or sentence unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court." O'Dell v. Netherland, 521 U.S. 151, 156 (1997). Accordingly, a threshold question on any habeas appeal is whether the relief petitioner seeks would entail the retroactive application of a new rule of federal constitutional criminal procedure to invalidate a final state conviction. See Teague v. Lane, 489 U.S. 288, 300-01 310 (1989) (plurality opinion); see also Penry v. Lynaugh, 492 U.S. 302, 313-14 (1989) (adopting the Teague holding by majority opinion).

Answering this question requires a step-by-step inquiry into three matters: first, the date on which petitioner's conviction became final; second, whether the rule of constitutional criminal procedure on which petitioner relies is "new"; and third, if the rule is new, whether it falls within one of the two narrow exceptions to the general rule against the retroactive application of new rules to invalidate final state court convictions. See O'Dell, 521 U.S. at 156-57. We address these steps in turn.

A. When Did Gaines' Conviction Become Final?

With regard to the first step, we have no trouble in determining that Gaines' conviction became final on December 5, 1988 when the New York Court of Appeals, the state's highest court, denied Gaines leave to appeal, see Gaines, 73 NY2d 855. Cf. O'Dell, 521 U.S. at 157 (conviction became final upon denial of certiorari to state's highest court).

B. Is the Rule on Which Gaines Relies "New"?

Under the second step, in ascertaining whether a rule is new, "our task is to determine whether a state court considering [petitioner's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [petitioner] seeks was required by the Constitution." Saffle v. Parks, 494 U.S. 484, 488 (1990); accord O'Dell, 521 U.S. at 156.

Here, the inquiry grows more complicated. Certainly, in December 1988 it was not a "new" notion that the standard of proof beyond a reasonable doubt in criminal cases implicates concerns of constitutional due process. The Supreme Court after all has entertained challenges to reasonable doubt instructions for over a century. See, e.g., Holland v. United States, 348 U.S. 121, 140 (1954); Miles v. United States, 103 U.S. 304, 312 (1881). And in 1970 the Supreme Court explicitly held "that the Due Process Clause protects the accused against conviction except...

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