Diguglielmo v. Smith, 03-2275.

Citation366 F.3d 130
Decision Date28 April 2004
Docket NumberNo. 03-2275.,03-2275.
PartiesRichard DIGUGLIELMO, Petitioner-Appellant, v. Joseph T. SMITH, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Andrew H. Schapiro, New York, NY (Mayer, Brown, Rowe & Maw, New York, NY, on the brief), for Petitioner-Appellant.

Robert K. Sauer, Assistant District Attorney, White Plains, NY (Jeanine Pirro, District Attorney of Westchester County, Richard E. Weill, First Deputy District Attorney, White Plains, NY, on the brief), for Respondent-Appellee.

The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY (Darrell B. Fields, Barry D. Leiwant, New York, NY, of counsel), filed a brief for The Legal Aid Society as Amicus Curiae in support of Appellant.

Before: KEARSE, CABRANES, and KATZMANN, Circuit Judges.

PER CURIAM.

This case returns to us following a renewed petition for habeas corpus by petitioner Richard D. DiGuglielmo, a New York State ("State") prisoner, after this Court dismissed his first petition because of his failure to exhaust his state-court remedies. See DiGuglielmo v. Senkowski, 42 Fed.Appx. 492, 495-496, 2002 WL 1162791, at **3, 4 (2d Cir. June 3, 2002) ("DiGuglielmo I"). DiGuglielmo, convicted in state court of second-degree murder, appeals from a judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Judge, denying his renewed petition alleging that he was denied due process at trial by reason of (a) an erroneous jury instruction as to his defense of justification and (b) a summation argument by the prosecutor which, although consistent with the indictment, was inconsistent with a pretrial bill of particulars served by the State. The district court ruled (a) that the jury charge on justification was erroneous but that the error was harmless, and (b) that the alleged variance between the State's summation and its bill of particulars did not present a federal claim. See DiGuglielmo v. Smith, 02 Civ. 8946, slip op. at 10-15 (S.D.N.Y. Mar. 31, 2003) ("DiGuglielmo II"). DiGuglielmo challenges these rulings on appeal. For the reasons that follow, we affirm.

BACKGROUND

The murder charge against DiGuglielmo was based on his shooting of Charles Campbell following an altercation between Campbell and DiGuglielmo, DiGuglielmo's father ("Senior"), and DiGuglielmo's brother-in-law ("Errico") in front of the father's delicatessen.

Since it was three against one, Campbell was shortly forced to the ground and beaten repeatedly and severely by the other participants while on the ground. There was evidence that Petitioner hit Campbell twenty times in the face; Senior hit Campbell thirty times, fracturing his right hand in doing so, and according to [one witness], Petitioner clubbed Campbell's head with Campbell's cell phone until the phone, which was an exhibit at trial, became shattered.

Ultimately, Campbell regained his feet and the fighting stopped, although shouting continued among the participants. As Campbell backed away from the fight, Senior grabbed his shirt, pulling him forward until the shirt came off. Campbell retreated to his car, opened the trunk and removed a metal baseball bat, which he placed on his shoulder in a hitting position. Senior and Errico moved towards Campbell, and Campbell, after backing away for eight or ten feet, pursued by Senior, swung the bat striking Senior in the knee.

DiGuglielmo II, slip op. at 5. DiGuglielmo, an off-duty police officer, then entered the delicatessen and returned with a gun.

Meanwhile, Errico and Senior were moving towards Campbell, and Campbell was backing away while holding the baseball bat.

According to the evidence developed at trial viewed most favorably to the prosecution, suddenly Petitioner came out of the deli and without identifying himself as a police officer, or giving any word of warning, pointed the pistol at Campbell, and fired three shots....

Id. at 5-6. DiGuglielmo's shots hit Campbell in the torso, killing him. See id. at 6.

In support of his justification defense, DiGuglielmo "claimed that Campbell was poised to strike his father in the head with the baseball bat and that he had no time to disarm Campbell or choose a different course of action." DiGuglielmo I, 42 Fed.Appx. 492, 2002 WL 1162791, at *1. The evidence at DiGuglielmo's trial, however, showed that "[a]t the time of the shooting [DiGuglielmo's father and brother-in-law] were not within striking distance of Campbell's baseball bat." DiGuglielmo II, slip op. at 6. Two disinterested witnesses testified that when DiGuglielmo shot Campbell, the distance between Campbell and DiGuglielmo's father was at least 10-14 feet; and according to several such witnesses, Campbell was backing away. (See People v. DiGuglielmo, Ind. No. 96-1403 (Westchester County), Trial Transcript at 191, 193-95 (Sept. 19, 1997); id. at 639, 666, 765, 686 N.Y.S.2d 443 (Sept. 25, 1997); id. at 1071-72, 1074-75, 686 N.Y.S.2d 443 (Oct. 1, 1997).)

On direct appeal from his conviction, DiGuglielmo argued, inter alia, that the trial court's instructions to the jury erred in describing the applicability of justification with respect to defense of a third person. The Appellate Division rejected this contention, holding that "the court's justification charge with respect to defense of a third person, when viewed as a whole, adequately conveyed the proper standards to be applied." People v. DiGuglielmo, 258 A.D.2d 591, 592, 686 N.Y.S.2d 443, 444 (2d Dep't), lv. denied, 93 N.Y.2d 923, 693 N.Y.S.2d 507, 715 N.E.2d 510 (1999). The Appellate Division also concluded that the evidence was "ample" to permit the jury to find beyond a reasonable doubt that when DiGuglielmo shot Campbell, DiGuglielmo did not reasonably believe Campbell was threatening DiGuglielmo's father. Id. The New York Court of Appeals denied permission to appeal further. See People v. DiGuglielmo, 93 N.Y.2d 923, 693 N.Y.S.2d 507, 715 N.E.2d 510 (1999).

DiGuglielmo's first federal habeas petition pursued, inter alia, his present challenges to the trial court's instructions on justification and the prosecutor's summation. The district court denied the petition on its merits. On appeal, this Court ruled that the district court should not have reached the merits because DiGuglielmo had not exhausted his state-court remedies. See DiGuglielmo I, 42 Fed.Appx. 492, 494-496, 2002 WL 1162791, at **2-4. We held, relying on Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir.2000), and Grey v. Hoke, 933 F.2d 117, 119-20 (2d Cir.1991), that there was no exhaustion because DiGuglielmo had failed to present his habeas claims adequately to the New York Court of Appeals:

"[A]ttaching an appellate brief without explicitly alerting the [New York Court of Appeals] to each claim raised does not fairly present such claims for purposes of the exhaustion requirement underlying federal habeas jurisdiction."

DiGuglielmo I, 42 Fed.Appx. 492, 494, 495, 2002 WL 1162791, at *3 (quoting Jordan v. Lefevre, 206 F.3d at 199).

Thereafter, DiGuglielmo returned to state court and sought indirect review of his present claims by asserting, in a petition for coram nobis, that his attorney's failure to refer to them expressly in the request for permission to appeal to the New York Court of Appeals amounted to constitutionally ineffective assistance of counsel. That petition was denied on the ground that DiGuglielmo "failed to establish that he was denied the effective assistance of appellate counsel." People v. DiGuglielmo, 299 A.D.2d 365, 749 N.Y.S.2d 180 (2d Dep't 2002), lv. denied, 99 N.Y.2d 627, 760 N.Y.S.2d 109, 790 N.E.2d 283 (2003). DiGuglielmo then returned to the district court, filing the present habeas petition. As indicated above, the district court dismissed the petition on the ground that the alleged error in the justification instruction was harmless and that the challenge to the prosecutor's summation did not assert a federal claim. This appeal followed.

DISCUSSION

On appeal, DiGuglielmo challenges the district court's rulings. He also contends, inter alia, that he should be found to have exhausted his claims prior to DiGuglielmo I despite the ruling in that case. Joined by the Legal Aid Society as amicus curiae, he urges this Court either (A) to overrule en banc its prior decisions in such cases as Jordan v. Lefevre and Grey v. Hoke, or (B) to certify to the New York Court of Appeals the question of whether that Court considers the attachment of, or a reference to, a brief submitted to a lower court to be sufficient to constitute a request to appeal on the basis of all of the arguments made in that prior brief. DiGuglielmo also argues that he has shown cause and prejudice for his procedural default and has shown actual innocence.

The State, while disagreeing with the district court's view that the trial court's justification instruction was erroneous, otherwise defends the district court's rulings. It also argues that, as held in DiGuglielmo I, DiGuglielmo failed to exhaust his state-court remedies; that because he can no longer present these claims in state court, they are procedurally barred; and that because DiGuglielmo has failed to show cause and prejudice with respect to his procedural default, his claims may not be entertained by the federal courts.

For the reasons that follow, we affirm the denial of DiGuglielmo's habeas petition on the grounds, inter alia, that his claims were not properly exhausted and that his procedural default is not excusable because he has not shown adequate cause for the default, or prejudice resulting from it, or actual innocence; that his claims assert errors of state law that are not cognizable in a federal habeas proceeding; and that, even if cognizable, his claims lack merit because any error was harmless.

DiGuglielmo's contention that he had exhausted his state-court remedies prior to DiGuglielmo I is barred by the law-of-the-...

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