366 F.3d 130 (2nd Cir. 2004), 03-2275, DiGuglielmo v. Smith

Docket Nº:03-2275.
Citation:366 F.3d 130
Party Name:Richard DIGUGLIELMO, Petitioner-Appellant, v. Joseph T. SMITH, Respondent-Appellee.
Case Date:April 28, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 130

366 F.3d 130 (2nd Cir. 2004)

Richard DIGUGLIELMO, Petitioner-Appellant,


Joseph T. SMITH, Respondent-Appellee.

No. 03-2275.

United States Court of Appeals, Second Circuit

April 28, 2004

Argued: Feb. 17, 2004.

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[Copyrighted Material Omitted]

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

Robert K. Sauer, Assistant District Attorney, White Plains, N.Y. (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, N.Y. (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.


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

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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.


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...

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