Smith v. Duncan

Citation411 F.3d 340
Decision Date21 June 2005
Docket NumberDocket No. 04-0604-PR.
PartiesJua SMITH, Petitioner-Appellant, v. George DUNCAN, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Roland R. Acevedo, New York, New York, for Petitioner-Appellant (on submission).

Thomas J. Spota, District Attorney of Suffolk County, New York (Guy Arcidiacono, Assistant District Attorney, of counsel, Elisa Baez, intern, on the brief), Riverhead, New York, for Respondent-Appellee (on submission).

Before: MESKILL, CALABRESI, and WESLEY, Circuit Judges.

WESLEY, Circuit Judge.

Petitioner Jua Smith appeals from an order of the United States District Court for the Eastern District of New York (Weinstein, J.) denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Smith was convicted by a jury in Suffolk County Court of second degree murder in connection with the 1996 shooting death of Jacob Seavey. The district court denied the petition but issued a Certificate of Appealability on the issue of the admissibility of a 911 tape that was excluded from evidence at trial. We hold that the district court correctly denied the petition because the issue was procedurally defaulted.

Background

In September 1997, Petitioner-Appellant Jua Smith, then seventeen years old, was found guilty by a jury in Suffolk County Court of intentionally murdering Jacob Seavey, a longtime childhood friend. Seavey was killed instantly by a single gunshot at Smith's home in Brentwood, New York, on April 30, 1996. Immediately following the shooting, Smith called 911 and reported the incident, repeatedly asking the operator to send police.

When the police arrived, they found Smith sitting on the stoop outside his home on the phone with the 911 operator. They arrested Smith, who was quiet and cooperative, and brought him to the police station for questioning. Throughout the interrogation, and to this day, Smith's version of the events has been the same. Smith had allowed Seavey, whom he claims he trusted at the time, into his home. The two were talking in Smith's bedroom when Seavey received a page from his mother. While Seavey made a phone call, Smith went to the bathroom and was there for about ten minutes. When Smith left the bathroom, Seavey was standing immediately outside in the hallway, pointing a shotgun at Smith's head. Smith asked, "What are you doing? Get that out of my face." Receiving no response, Smith struggled with Seavey for the gun. Smith took the gun from Seavey and stepped back. At that point, Smith claims that Seavey reached for a knife in his pocket. Smith contends that he fired the gun at Seavey without thinking. According to Smith, he called 911 immediately after the shooting.

At trial, Smith did not deny shooting Seavey, but maintained that he acted in self-defense, believing that Seavey's actions were part of a gang reprisal. He testified that he and Seavey had been part of the same gang whose activities included selling drugs, stealing cars, and robbing people. Smith's testimony about his gang involvement with Seavey and others was corroborated by the testimony of his father, Rudolph Smith. Rudolph also testified that his son had broken away from the gang when they began selling crack-cocaine. At that point, Smith left his father's house in New York to live with his mother in Washington, D.C. However, in 1995, Smith's mother died, and Smith returned to live with his father.

When Smith returned to New York, Seavey and other gang members pressured him to rejoin their group. Smith testified that because he dropped out of the gang, members were trying to get back at him. He claimed that on several occasions Seavey, along with others in the gang, threatened and assaulted him. Because of the gang's threats, Smith contended that he lived in fear — returning directly home after school, staying inside with the curtains closed, and changing his path to and from school to avoid the gang.

The prosecution challenged Smith's testimony about his fear of the gang. In addition to suggesting Smith's gang story was fabricated, the prosecutor introduced forensic evidence that Seavey was lying on the floor when shot, not standing as Smith had claimed.

In response, the defense sought to introduce the 911 tape that recorded Smith's conversation with the operator after the shooting, and the testimony of Smith's aunt, who would have testified about Smith's fear of gang violence in the weeks leading up to the incident. The trial court denied both requests. The court initially held that the 911 tape was inadmissible because it believed that Smith had given the operator a false name, Holt-Smith, an indication that he had time to reflect on his actions. After the defense established that Smith regularly used a hyphenated version of his mother's and father's surnames (Holt-Smith) and therefore was not lying to the operator, the trial court reconsidered the issue. Ultimately, however, the court decided not to allow the jury to hear the 911 tape.1

On July 25, 1997, the jury returned a guilty verdict for murder in the second degree, and Smith was sentenced to an indeterminate term of incarceration of twenty-five years to life. Smith appealed to the New York Appellate Division, Second Department, arguing, inter alia, that the 911 tape was erroneously excluded. Specifically, he argued that the tape was an exception to the hearsay rule — that it was an excited utterance or present sense impression, or that it refuted that Smith's proffered fear of the gang was a recent fabrication. The Appellate Division unanimously affirmed his conviction without specifically mentioning the 911 tape, concluding, "The defendant's remaining contentions are either unpreserved for appellate review or without merit." People v. Smith, 261 A.D.2d 423, 424, 689 N.Y.S.2d 230 (2d Dept. 1999). Smith's motion for leave to appeal to the New York Court of Appeals was denied. People v. Jua Smith, 93 N.Y.2d 1006, 695 N.Y.S.2d 752, 717 N.E.2d 1089 (1999) (Ciparick, J.).

On July 12, 2000, Smith filed a petition for a writ of habeas corpus in the Eastern District of New York (Weinstein, J.), arguing that the exclusion of the 911 tape and his aunt's testimony at trial amounted to a denial of due process in violation of the United States Constitution — an argument he had not previously presented to the State appellate courts. By judgment dated August 5, 2003, the district court determined that both issues "are now procedurally defaulted" because Smith in his state appeal made "no argument that exclusion constituted a violation of the federal constitution."

Judge Weinstein nevertheless expressed his concern that the exclusion of the 911 call was "troubling." Though he felt that a "federal trial court would almost certainly have admitted it," he reasoned that the "matter was within the trial court's discretion." Accordingly, he denied Smith's petition, but issued a Certificate of Appealability (COA) on the issue of the 911 call. This appeal followed.

Discussion

Where an appeal follows the denial of a petition for a writ of habeas corpus, we review de novo the court's legal conclusions and review its factual findings for clear error. See Anderson v. Miller, 346 F.3d 315, 324 (2d Cir.2003).

I. Exclusion of the Testimony of Eleanor Smith

Smith claims, first, that the state trial court violated his constitutional right to a fair trial by excluding the testimony of his aunt, Eleanor Smith, who could confirm that Smith had previously voiced grave concerns that Seavey and Seavey's associates in the gang were threatening him and that, because of those threats, Smith lived in constant fear. The district court held that because the "[e]xclusion of the aunt's testimony was not raised in the [New York] Court of Appeals," the issue had not been properly preserved and therefore was procedurally defaulted.

We agree with the district court that Smith's letter to the New York Court of Appeals did not properly preserve this issue. After examining the record in this case, we can find no mention of any error — state or federal — in petitioner's leave application regarding the exclusion of Eleanor Smith's testimony. Although Smith raised a claim about the "erroneous exclusion of the 911 tape," and a separate claim involving a "due process violation in the grand jury," Smith nowhere contested the exclusion of Ms. Smith's testimony. Furthermore, we reject his argument that the New York high court should have been alerted to this issue by the prosecution's brief mention of it.2

"In New York, to invoke `one complete round of the State's established appellate review process' [O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)], a criminal defendant must first appeal his or her conviction to the Appellate Division, and then must seek further review of that conviction by applying to the Court of Appeals for a certificate granting leave to appeal." Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir.2005). "New York Court rules require that leave applicants submit to the Court of Appeals briefs and other documents from the lower courts to `identify the issues on which the application is based' and to pay `[p]articular written attention ... to identifying problems of reviewability and preservation of error.'" Id. (quoting New York Court Rules § 500.10(a) (McKinney 1999)).3

Generally "we assume that the Court of Appeals would construe a petitioner's leave application as abandoning claims that the petitioner had pressed to the Appellate Division below" where those claims were not presented to the New York high court for review. Galdamez, 394 F.3d at 74. In Grey v. Hoke, where a petitioner requested review by the New York Court of Appeals of only one of three issues presented to the Appellate Division, we held that the other claims were not presented, noting that "[f]or a federal court to hold that a state court had...

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