Davis v. Strack

Decision Date01 August 2000
Docket NumberPETITIONER-APPELLANT,Docket No. 00-2286,RESPONDENTS-APPELLEES
Citation270 F.3d 111,2001 WL 1336002
Parties(2nd Cir. 2001) RONALD DAVIS,, v. WAYNE STRACK, SUPERINTENDENT, FISHKILL CORRECTIONAL FACILITY; AND DENNIS C. VACCO, NEW YORK STATE ATTORNEY GENERAL,
CourtU.S. Court of Appeals — Second Circuit

Petitioner appeals from the denial by the United States District Court for the Southern District of New York (Berman, J.) of his petition to set aside his New York state convictions for manslaughter and illegal gun possession in the second degree. Petitioner claims that the trial judge's refusal to charge the jury on the defense of justification for the use of deadly force resulted in a denial of due process. The Court of Appeals, Leval, Circuit Judge, holds that under New York law petitioner was entitled to have the jury instructed on justification with respect to the homicide charge. The withholding of the instruction denied him the opportunity to present his defense. This error so prejudiced the petitioner's trial as to constitute a denial of due process under the test of Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). With respect to the charge of illegal gun possession, petitioner failed to show entitlement.

Affirmed in part; reversed in part.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Frances Gallagher, The Legal Aid Society, New York, New York, for Appellant.

Rona Feinberg, Assistant District Attorney (Morrie I. Kleinbart, Assistant District Attorney, of counsel), for Robert M. Morgenthau, District Attorney, New York County, New York, New York, for Appellee.

Before: Leval, Sack, and Sotomayor, Circuit Judges.

Leval, Circuit Judge

This appeal from the denial of a writ of habeas corpus under 28 U.S.C. § 2254 by the United States District Court for the Southern District of New York (Berman, J.) raises the question whether a trial judge's denial of a jury instruction on justification for the use of deadly force requires that the petitioner's convictions for manslaughter and second-degree criminal possession of a weapon be set aside. At his trial for murder, petitioner credibly testified that he killed to protect himself from a man who had assaulted, raped, and threatened to kill him. The New York Supreme Court, New York County, ruled that the petitioner was not entitled to a jury instruction on justification because he had failed to retreat to avoid the danger of a confrontation when he had an earlier opportunity to do so. In an opinion issued after Davis's trial, In the Matter of Y.K., 87 N.Y.2d 430, 434 (1996), the New York Court of Appeals clarified that the trial judge relied on a mistaken standard in ruling that petitioner had forfeited the justification defense.

On the evidence, taken in the light most favorable to the petitioner as New York law requires, the jury could have found that (a) petitioner used deadly force because he reasonably believed this was necessary in his defense as the other person was about to use deadly force against him; (b) at the earlier time when petitioner could have withdrawn in safety, there was as yet no imminent threat of deadly force against him; and (c) when the time came that petitioner used deadly force in his defense, he reasonably believed he could no longer retreat in safety. Petitioner was accordingly entitled under New York law to a jury instruction on the defense of justification. The court's refusal to instruct the jury on justification deprived petitioner of the opportunity to have his defense to the homicide charge considered by the jury. Because it was a credible defense - one which the jury might well have accepted - the error had a profound effect on the trial, and resulted in a denial of due process under the test of Cupp v. Naughten, 414 U.S. 141 (1973). We further find that the requirements of 28 U.S.C. § 2254(d) are satisfied and therefore remand with instructions to grant the writ with respect to the petitioner's manslaughter conviction. The denial of the writ is affirmed as to the petitioner's conviction for illegal weapon possession.

BACKGROUND

On June 20, 1992, petitioner Ronald Davis, a twenty-three-year-old numbers runner in Harlem, fatally shot Eddie Ray Leonard, also known as "Bubblegum." Bubblegum, who was six feet tall, weighed 435 pounds, and was twenty years older than Davis, had previously robbed Davis three times at gunpoint, raped him, and recently threatened to kill him when he next saw him. Given this background, together with Bubblegum's actions at the time of their final encounter on June 20, 1992, it was entirely reasonable for Davis to believe that Bubblegum was about to assault him with deadly force.

The history of the relationship between Davis and Bubblegum is as follows. The evidence is presented in the light most favorable to Davis, as New York law requires it to be in evaluating whether Davis was entitled to a charge on justification. See People v. McManus, 67 N.Y.2d 541, 549 (1986); People v. Magliato, 68 N.Y.2d 24, 29 (1986); People v. Torre, 42 N.Y.2d 1036, 1037 (1977). Nevertheless, we note that Davis's testimony was in almost all respects uncontested, and in several important respects corroborated.

Davis had known Bubblegum's violent reputation for a long time. He had tried to avoid Bubblegum because Bubblegum had a reputation for being "a bad guy.... Everybody knows him as a stick up kid, he is dangerous." Davis had heard that he

beat a lady with a chain and robbed her. And there was an old lady and old man he had robbed and he had stabbed the old man. He had robbed the [drug] dealers that were on the street.... They had their girlfriend with him. He had tied him up and raped the girl. He had beaten somebody up bad around his block and he had to go to the hospital. He robbed and raped a lady in his building.

Davis knew that Bubblegum used "[d]ust [phencyclidine or PCP], cocaine and dope," and said that when Bubblegum was on drugs he "would get wild and violent and go on his missions... sticking people up in the neighborhood."

James Bluitt, who lived in Bubblegum's building, testified that Bubblegum had broken a stick over his head and assaulted him, putting Bluitt in the hospital. Bluitt subsequently went to the police and obtained orders of protection against Bubblegum. Bluitt said Bubblegum had a reputation in the community for being vicious and violent, and for carrying a gun.

Davis was first robbed by Bubblegum when he was fifteen or sixteen years old. He described the incident as follows:

One morning, I was running the numbers and I got to 146th Street, I seen a friend named Gregory [Pearce], I was talking to him. Then this guy named CC.... come up to me. He is asking me questions that I couldn't answer. He kept talking to me. He pulled out the gun and made me go into the hallway.... After he forced me into the building, we got to look in the building, then I see Bubblegum picked up groceries and carried [them] into the building.... Then they made us go upstairs.... They had the guns to us.... Both of them had a gun.... [When we got upstairs] [t]hey went and took--they went in our pocket took the money we had and made us strip.... They said "Take off your clothes."... CC had the gun on me.... [Bubblegum's gun was pointed] at Gregory. [Davis and Gregory took their clothes off and put them] [o]n the floor.... They kept demanding more money. They thought I had more money but I didn't have any more. Bubblegum said I was lying. He told CC to shoot us.... [CC] said, "We got the money, why shoot him?" Then they was arguing. Then they left down the stairs.

Gregory Pearce, the other victim, a store manager who did not have a criminal record, also testified to those events, corroborating Davis in all material respects.

Two or three years later when Davis was about eighteen, Bubblegum robbed Davis again. Davis was walking alone on 147th Street and Saint Nicholas Avenue in the evening as darkness arrived. He testified:

[A]s soon as I turned the corner on 147th Street, Bubblegum was there.... He grabbed me by my shirt and said, "Come here, come here, little bitch." He had a gun out. He went in my pocket.... [He was pointing the gun] towards my chest.... He took the money I had in my pocket.... [After taking the money he] told me to get the fuck out of here.

Davis did not report these incidents to the police. He believed the police would be unsympathetic to a numbers runner and would do little to protect him. Also, Davis feared that if he reported the incidents Bubblegum would retaliate. After the second robbery, whenever Davis saw Bubblegum on the street, he hid. Bubblegum was later imprisoned for robbery, and Davis did not see him for a while.1

In the spring of 1992, Bubblegum again robbed Davis at gunpoint, raped him, and threatened to kill him. Davis testified:

I was on 146th Street, 518, where I usually take the numbers. I was hanging out there, drinking coffee and I had a danish. It was early in the morning.... A tall guy comes up to me and he is asking me about drugs. Did I know where to get them from. I was telling him no, I don't know. You know what I am saying.... I didn't know that person.... He kept talking to me. I was trying to walk away from him and ignore him because once I told him, no, he still kept talking to me. Then he pulled out the gun and pushed me in the hallway. When I got to the back of the hallway that is when Bubblegum came in.... [Bubblegum] said, ["T]ake him upstairs.["] [Bubblegum had a gun, and] [t]he other guy had the gun to my back. They both led me upstairs.... [t]o the top landing of the building. When it is the top landing, as soon as you step outside the door, you're outside on the roof.... They went into my pocket.... He was going through my pocket. [Bubblegum] said[,] "I know you got more money." I didn't have any more money. He made me strip. He figured I had...

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