Allah v. Kelly
| Decision Date | 29 June 1998 |
| Docket Number | No. 97-CV-286A.,97-CV-286A. |
| Citation | 32 F.Supp.2d 592 |
| Parties | Shamell ALLAH, a/k/a Sixto Scott, Petitioner, v. Walter R. KELLY, Superintendent, Attica Correctional Facility, Respondent. |
| Court | U.S. District Court — Western District of New York |
Loretta Courtney, Rochester, NY, for Respondent.
This case was referred to Magistrate Judge Carol E. Heckman pursuant to 28 U.S.C. § 636(b)(1) on June 25, 1997. On April 17, 1997, petitioner filed a petition for a writ of habeas corpus. On June 2, 1998, Magistrate Judge Heckman filed a Report and Recommendation, recommending that petitioner's petition for a writ of habeas corpus be denied and the case dismissed.
The Court having carefully reviewed the Report and Recommendation, the record in this case, as well as the pleadings and materials submitted by the parties; and no objections having been timely filed, it is hereby
ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and for the reasons set forth in Magistrate Judge Heckman's Report and Recommendation, petitioner's petition for a writ of habeas corpus is denied and the case is dismissed.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
This petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 was referred to the undersigned by Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). For the following reasons, it is recommended that the petition be denied.
Petitioner Shamell Allah1 was indicted on two counts of robbery (New York Penal Law § 160.15(1), (2)), and one count of felony murder (New York Penal Law § 125.25(3)),2 for the shooting death of Richard Calderon. Calderon was shot and killed on a street corner in the City of Rochester on October 16, 1991. He was wearing a necklace which was removed from him at the time of the shooting. Several eyewitnesses testified to seeing petitioner at the scene, and at least one witness testified that petitioner held a gun to the victim and demanded his necklace. When the victim ran away, he was shot in the back. Two men ran up to the victim and one of the men took the necklace from around the victim's neck. Petitioner and another man, Neftali Bliss, were indicted on the robbery and felony murder charges. On November 20, 1992, after a jury trial, petitioner was found guilty of all charges. Thereafter, he was sentenced on the murder charge to a term of twenty-five years to life, to be served concurrently with two terms of twelve and one-half to twenty-five years on the robbery charges.
Petitioner appealed his conviction to the Appellate Division, Fourth Department, raising the following issues:
1. The trial court erred when it declined to suppress in-court identification testimony;
2. The trial court erroneously declined to charge petit larceny as a lesser included offense of robbery in the first degree;
3. The court's charge on accomplice liability deprived appellant of his constitutional right to a fair trial;
4. Petitioner did not make a knowing, voluntary and intelligent waiver of his right to testify, as required by the New York State Constitution.
(see Item 7, App. C).
On May 27, 1994, the Fourth Department unanimously affirmed petitioner's conviction. People v. Scott, 204 A.D.2d 995, 612 N.Y.S.2d 725 (4th Dept.1994). The Appellate Division found with respect to the issue of notice of the in-court identification that "[a]ny defect in the CPL § 710.30 notice was cured when, after moving to suppress the in-court identification, defendant was granted a Wade hearing, after which the motion was denied." Id., 204 A.D.2d at 995, 612 N.Y.S.2d at 725 (citations omitted). With respect to the failure of the trial court to charge the jury with a lesser included offense, the Appellate Division held that Id., 204 A.D.2d at 996, 612 N.Y.S.2d at 725-26 (citations omitted). The Appellate Division did not specifically address the accomplice liability jury charge, noting that "[d]efendant's remaining contention is not preserved for review, and we decline to reach it as a matter of discretion in the interest of justice." Id., 204 A.D.2d at 996, 612 N.Y.S.2d at 726. Finally, with respect to the claim that the petitioner did not make a knowing, voluntary and intelligent waiver of his right to testify, the Appellate Division stated that the trial court "was not required to inquire of defendant whether he was aware of his right to testify and whether he waived that right." Id.
On November 27, 1994, the New York State Court of Appeals denied leave to appeal. People v. Scott, 84 N.Y.2d 939, 621 N.Y.S.2d 536, 645 N.E.2d 1236 (1994). Thereafter, petitioner filed for a writ of error coram nobis in the Appellate Division on grounds including ineffective assistance of counsel, but that application was denied by order dated December 22, 1995. People v. Scott, 222 A.D.2d 1129, 636 N.Y.S.2d 963 (1995).
In this petition for habeas corpus relief, petitioner raises three grounds:
1. The trial court's refusal to charge the jury as to a lesser included offense violated his right to due process;
2. The trial court's charge concerning accomplice liability deprived petitioner of his right to a fair trial;
3. Petitioner was denied effective assistance of appellate counsel.
Respondent has answered the petition, raising the following grounds for denial of the writ:
1. Petitioner failed to exhaust his state remedies 2. The trial court's decision not to present the jury with a lesser included offense charge rested on state law and is not subject to review in a petition for federal habeas corpus;
3. There was no constitutional violation in the trial court's accomplice liability jury charge; and,
4. Petitioner was not denied effective assistance of counsel.
(Item 7). Each of these claims and responses is discussed in turn below.
In general, before a federal court may address the merits of any federal issue on petition for a writ of habeas corpus, the petitioner must have exhausted all available state remedies as to that issue. 28 U.S.C. § 2254(b)(1);3 Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir.1991). Exhaustion of state remedies requires presentation of the claim to the highest state court from which a decision can be obtained. Daye v. Attorney General of the State of New York, 696 F.2d 186, 190 n. 3 (2d Cir.1982), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984).
The exhaustion doctrine also requires that a habeas petitioner seeking to upset his or her state conviction on federal grounds must first give the state courts a fair opportunity to pass upon all of the federal claims asserted in the petition. Id. at 191; Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Respondent contends that petitioner failed to present his first and second claims to the state court in federal terms. However, a review of the appellate briefs shows that the claims raised in this habeas petition — i.e., the refusal of the trial court to charge the jury with a lesser included offense instruction, the trial court's allegedly insufficient accomplice charge and petitioner's ineffective assistance of counsel claims — were adequately presented to the appellate courts in a manner that "sufficiently alerted the state courts to the federal constitutional nature" of the claims. Gonzalez, supra, 934 F.2d at 423.
Accordingly, the petition should not be denied on the basis of the exhaustion doctrine.
Petitioner asserts constitutional errors in two aspects of the jury charge. First, he claims that the trial court erred in failing to charge petit larceny as a lesser included offense of the robbery counts. Second, petitioner argues that the court's accomplice charge was erroneous and deprived him of a fair trial.
As a general matter, "[i]n order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instruction to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir.1985); see also Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). The standard on a habeas corpus petition is "quite different" from the standard on direct review of proceedings in a federal criminal case. Rogers v. Carver, 833 F.2d 379, 381 (1st Cir.1987), cert. denied, 485 U.S. 937, 108 S.Ct. 1116, 99 L.Ed.2d 276 (1988). The habeas petitioner has the burden of meeting a very high standard — "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Naughten, supra, 414 U.S. at 147, 94 S.Ct. 396; see also Pawlowski v. Kelly, 932 F.Supp. 475, 482 (W.D.N.Y.1995). I now address each charge issue separately to examine whether petitioner has met that "very high standard."
Petitioner argues that the trial court erred by refusing defense counsel's request to charge the lesser-included offense of petit larceny. On direct appeal to the Appellate Division, petitioner argued that a reasonable view of the evidence would have permitted the jury to find that the petitioner or an accomplice formed the intent to take the necklace from the victim only after the victim was shot. The Appellate Division rejected petitioner's argument, stating as follows:
From our review of the record, we conclude that the court properly refused to charge petit larceny as a lesser included offense of robbery in the first degree....
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