Dingle v. Mance

• Decision Date: 18 May 2010
• Docket Number: No. 08 Civ. 2044(SAS)(DFE).,08 Civ. 2044(SAS)(DFE).
• Citation: 716 F.Supp.2d 309
• Parties: John DINGLE, Petitioner, v. James MANCE, Superintendent, Marcy Correctional Facility, and Andrew M. Cuomo, Attorney General of the State of New York, Respondents.
• Court: U.S. District Court — Southern District of New York

716 F.Supp.2d 309

John DINGLE, Petitioner,

v.James MANCE, Superintendent, Marcy Correctional Facility, and Andrew M. Cuomo, Attorney General of the State of New York, Respondents.

No. 08 Civ. 2044(SAS)(DFE).

United States District Court,S.D. New York.

May 18, 2010.

Steven R. Berko, Esq., Legal Aid Society, Criminal Appeals Bureau, New York, NY, for Petitioner.

Christopher J. Blira-Koessler, Assistant District Attorney, District Attorney's Office, Bronx County, Bronx, NY, for Respondents.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:

I. BACKGROUND

Represented by counsel, Petitioner John Dingle brings this habeas corpus petition, pursuant to 28 U.S.C. § 2254 (“ section 2254”), to challenge his state-court conviction for depraved indifference murder-later reduced to manslaughter. During the jury trial before Justice Robert H. Straus of the New York Supreme Court, Bronx County, Justice Straus refused to charge the jury on the law of justification (self-defense), though the evidence was undisputed that Dingle had been attacked by the decedent with a knife and a bat. Based on the conviction for depraved indifference murder, Justice Straus sentenced Dingle to twenty-two years to life imprisonment.

Dingle appealed his conviction to the Appellate Division, First Department. The Appellate Division ruled that “[t]he [trial] court properly declined to submit to the jury the defense of justification, since there was no reasonable view of the evidence, viewed most favorably to defendant, that would support such a charge.” ¹ Nonetheless, the Appellate Division reduced Dingle's conviction from depraved indifference murder to manslaughter in the second degree, ² and remanded for re-sentencing. ³ On October 27, 2006, Justice Straus resentenced Dingle to seven and one-half to fifteen years imprisonment.

Dingle then filed this timely habeas petition, arguing that the trial court's refusal to instruct the jury on the defense of justification deprived him of his due process right to a fair trial in which he could present this defense. I referred the petition to Magistrate Judge Douglas F. Eaton for a Report and Recommendation (“R & R”). ⁴ In his thorough R & R, dated July 10, 2009, 2009 WL 6484075, Judge Eaton recommends that I grant Dingle's habeas petition, ⁵ which requests his release from custody unless he is retried within sixty days. ⁶ Respondents formally objected to Judge Eaton's recommendation and his “conclusion that the state trial court's failure to instruct the jury on justification was contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court.” ⁷ Dingle opposed the Objections and asked this Court to grant Petitioner's application and issue the writ. ⁸ Respondents replied to Dingle's Opposition. ⁹ For the following reasons, I accept Judge Eaton's recommendation and hereby adopt the R & R. Accordingly, Dingle's habeas petition is granted, with a slight modification. ¹⁰

II. STANDARDSA. Deferential Standard for Federal Habeas Review

This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”). The AEDPA provides that a federal court may grant a writ of habeas corpus to a state prisoner only if the state court's adjudication of a particular claim, on the merits in a state court proceeding, resulted in a decision that: (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) ... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” ¹¹

With respect to subsection 2254(d)(1), the Supreme Court has explained that a state-court decision is “contrary to” clearly established federal law in the following instances:

First, a state-court decision is contrary to this Court's precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court's precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours. ¹²

With regard to the “unreasonable application” prong, the Supreme Court has stated:

[A] state-court decision can involve an “unreasonable application” of this Court's clearly established precedent in two ways. First, a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case. Second, a state-court decision also involves an unreasonable application of this Court's precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. ¹³

Thus, in order for a federal court to find a state court's application of Supreme Court precedent to be unreasonable, the state court's decision must have been more than incorrect or erroneous: “[t]he state court's application of clearly established law must be objectively unreasonable.” ¹⁴ This standard “ ‘falls somewhere between merely erroneous and unreasonable to all reasonable jurists.’ ” ¹⁵ While the test requires “ ‘[s]ome increment of incorrectness beyond error, ... the increment need not be great; otherwise habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.’ ” ¹⁶

With respect to subsection 2254(d)(2), the Supreme Court has observed that although the term “unreasonable” is difficult to define, “a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” ¹⁷ Moreover, under section 2254(e)(1), a determination of a factual issue by a State court “shall be presumed to be correct” and the petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” ¹⁸ In Wood v. Allen, the Supreme Court granted certiorari to resolve, inter alia, the question of “whether, in order to satisfy § 2254(d)(2), a petitioner must establish only that the state-court factual determination on which the decision was based was ‘unreasonable,’ or whether § 2254(e)(1) additionally requires a petitioner to rebut a presumption that the determination was correct with clear and convincing evidence.” ¹⁹ Unfortunately, the Supreme Court did not reach the issue of “whether § 2254(e)(1) applies in every case presenting a challenge under § 2254(d)(2)” because the “reasonableness of the state court's factual determination ... [did] not turn on any interpretive difference regarding the relationship between these provisions.” ²⁰

B. Justification Charge Under New York Law

Under Article 35 of the New York Penal Law, justification is a defense, not an affirmative defense. ²¹ Accordingly, the People bear the burden of disproving the defense beyond a reasonable doubt once it is raised on a proper evidentiary foundation. ²² Furthermore, in determining whether a justification charge is warranted, the trial court must assess the evidence in the light most favorable to the defendant, drawing all reasonable inferences in his favor. ²³

The defense of justification affirmatively permits the use of force under certain specified circumstances. A person may “use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person[.]” ²⁴ A person may not use deadly physical force upon another person, unless:

The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others[,] he or she may avoid the necessity of so doing by retreating.... ²⁵

The duty to retreat, however, does not attach when the actor is “in his or her dwelling and not the initial aggressor.” ²⁶

With regard to the charge of justification, the Second Circuit has held:

A justification charge is warranted, if on any reasonable view of the evidence, the fact finder might have decided that defendant's actions were justified. The New York Court of Appeals has rejected a restrictive application of the defense. In determining whether the evidence warrants a justification charge, the reviewing court must view the record in the light most favorable to the defendant. ²⁷

Furthermore, “[w]here a justification charge is warranted, a court's refusal to instruct the jury that the People must disprove the defendant's claim of justification constitutes reversible error.” ²⁸ Finally, a justification charge may be warranted even where a defendant argues that the act upon which the defense is based was not intentional ²⁹ or where aspects of a defendant's testimony is inconsistent with a justification defense. ³⁰

C. Habeas Relief for Missing Justification Charge

“ ‘In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions 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.’ ” ³¹ In weighing the prejudice from an allegedly improper or missing charge, a reviewing court must view the jury charge in its total context. ³² The question is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” ³³

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