Dickerson v. Lavalley
| Decision Date | 14 February 2017 |
| Docket Number | 11-cv-02505 (ERK) |
| Parties | TORRANCE DICKERSON, Plaintiffs, v. THOMAS LAVALLEY, SUPERINTENDENT, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR PUBLICATION
Torrance Dickerson, currently incarcerated after a conviction for second-degree murder, petitions for a writ of habeas corpus. I generally assume familiarity with the circumstances of this case, but briefly: In the spring of 2006, Dickerson shot Antoine Butts to death inside a house in suburban Greenlawn, New York. After a jury trial in Suffolk County Supreme Court, Dickerson was convicted of Intentional Murder in the Second Degree, see N.Y. PENAL LAW § 125.25(1), and sentenced to twenty-five years to life imprisonment. The Appellate Division affirmed his conviction. People v. Dickerson, 889 N.Y.S. 2d 199 (N.Y. App. Div. 2009), leave to appeal denied 14 N.Y. 3d 799. Dickerson's petition asserts five grounds for relief, none of which meets the demanding standards for federal habeas corpus.
During the conference on jury instructions, Dickerson requested that the jury be charged on negligent homicide, see N.Y. PENAL LAW § 125.10, and second-degree manslaughter, see id. § 125.15, as lesser-included offenses of second-degree murder. The trial judge denied his request, and the Appellate Division affirmed. Read at the outer limits of liberal construction, Dickerson's petition alleges that the refusal to instruct the jury on lesser-included offenses denied him due process of law, a claim that is as yet not cognizable on habeas review. Neither the Supreme Court nor the Second Circuit has ever held that there is a due process right to a lesser-included charge in a non-capital case, and the Second Circuit has explained that to recognize such an entitlement on collateral review would announce a new rule, in violation of Teague v. Lane, 489 U.S. 288 (1989). Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996).
Also during the instructions conference, Dickerson asked for a charge on the defense of justification. See generally Rodriguez v. Heath, 138 F. Supp. 3d 237, 245-51 (E.D.N.Y. 2015) (Korman, J.) (), aff'd 648 F. App'x 136 (2d Cir. 2016). The trial judge denied his request, and he raised the issue on direct appeal without presenting any federal basis for his claim. Not only did he rely solely on New York law, he also did not argue that the failure to charge on the defense of justification violated the Due Process Clause. The Appellate Division found that Dickerson was not entitled to a justification charge as a matter of New York law, because no reasonable view of the evidence supported a finding that he reasonably feared that Butts was about to use deadly force on him at the time of the shooting. I previously granted a habeas petition based in part on the conclusion that a New York court's refusal to give a justification instruction was erroneous as a matter of New York law, id. at 251, and resulted in a denial of due process by relieving the state of its burden to prove every element of the offense beyond a reasonable doubt, id. at 254.
There is no need, however, to engage in a similar analysis here. Dickerson has not made the requisite showing to overcome his procedural default, on direct appeal, of a due process claim based on the refusal of a justification instruction. Technically, that claim is exhausted—despite his failure to raise it in the state courts—because a federal claim is "deemed exhausted if it is, as a result [of not raising it], . . . procedurally barred under state law." Ramirez v. Attorney General of the State of N.Y., 280 F.3d 87, 94 (2d Cir. 2001) (citing Grey v. Hoke, 933 F.2d 117, 120-121 (2d Cir. 1991)). Dickerson has already used up his sole opportunity for direct review, and the New York courts will not engage in collateral review of a new claim that could have been raised on direct review. N.Y. CRIM. PROC. LAW § 440.10(2)(c). But when the failure to exhaust state remedies imposes a procedural bar to further relief in state court, "federal habeas courts also must deem the claim[] procedurally defaulted." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001). Dickerson's default on any federal claim respecting a justification instruction means that to win here, he must show cause for the default and prejudice flowing from it. Id. He has made neither showing.
Dickerson's third claim for relief is that the evidence presented by the District Attorney was insufficient to prove beyond a reasonable doubt his intent to kill Butts—the only element of second-degree murder that Dickerson contested at trial. As this court has previously explained, in assessing a sufficiency of the evidence argument raised in a habeas proceeding:
Santiago v. Kaplan, 2014 WL 3696024, at *1 (E.D.N.Y. 2014) (Korman, J.).
On direct review, the Appellate Division held that the evidence was legally sufficient to prove intent beyond a reasonable doubt, and that determination was not objectively unreasonable. The jury heard testimony that Dickerson arrived at the house where the murder occurred angry, demanding to know where Butts was, and carrying what appeared to be a handgun inside a woman's purse. Dickerson and Butts had a running series of disagreements, and had physically fought in the house the day before (with sufficient intensity to punch a hole in the kitchen wall). On this record, it was wholly reasonable for the Appellate Division to conclude that a reasonable jury could have found beyond a reasonable doubt that Dickerson intended to kill Butts.
Neither has Dickerson made out a viable claim under Brady v. Maryland, 373 U.S. 83 (1963). He argues that the District Attorney failed to turn over three pieces of purported Brady material in a timely fashion: 1) a supplemental police report containing statements by Butts and two other witnesses that he was shot by an unknown assailant, on the street, from a passing car, rather than by Dickerson inside the house, 2) statements by Dickerson's girlfriend, Veronica Kharjie, that she was outside when the shooting occurred, contradicting her earlier statements that she had witnessed it inside the house, and 3) statements of two other witnesses—neither party describes their...
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