DiSimone v. Phillips

• Decision Date: 22 August 2006
• Docket Number: Docket No. 05-6893-pr.
• Citation: 461 F.3d 181
• Parties: Anthony DiSIMONE, Petitioner-Appellee-Cross-Appellant, v. William E. PHILLIPS, Eliot L. Spitzer, Respondents-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

461 F.3d 181

Anthony DiSIMONE, Petitioner-Appellee-Cross-Appellant, v. William E. PHILLIPS, Eliot L. Spitzer, Respondents-Appellants-Cross-Appellees.

Docket No. 05-6893-pr.

United States Court of Appeals, Second Circuit.

Argued: June 21, 2006.

Decided: August 22, 2006.

COPYRIGHT MATERIAL OMITTED

John R. Bartels, Jr., Bartels & Feureisen, LLP, White Plains, N.Y., for the Petitioner-Appellee-Cross-Appellant.

Valerie A. Livingston, Assistant District Attorney for Janet DiFiore, District Attorney of Westchester County (Richard Longworth Hecht, on the brief), White Plains, N.Y., for the Respondents-Appellants-Cross-Appellees.

Before MINER and CALABRESI, Circuit Judges, and RESTANI, Chief Judge, United States Court of International Trade.^*

CALABRESI, Circuit Judge.

This case arises out of a 1994 fight that ultimately claimed the life of Louis Balancio, a twenty-one-year-old college student who had gone bar-hopping with his friends. Anthony DiSimone, the Petitioner-Appellee-Cross-Appellant ("DiSimone" or "Petitioner"), was identified as a suspect in Balancio's murder and went into hiding for more than five years before finally surrendering to police on November 9, 1999. On October 25, 2000, after a three-week jury trial in New York Supreme Court, Westchester County (Cowhey, J.), a jury found DiSimone guilty of depraved indifference murder under New York Penal Law § 125.25(2) and of separate counts of tampering with physical evidence. Although prosecutors presented evidence that DiSimone had stabbed Balancio thirteen times with a knife at close range, the jury acquitted DiSimone of intentional murder.

On April 23, 2004, after the Appellate Division, Second Department affirmed his conviction and leave to the New York Court of Appeals was denied,¹ DiSimone timely filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York (Brieant, J.). In his petition he asserted three grounds for habeas, all of which he had raised in his direct appeal in state court:

[P]etitioner was denied his constitutional rights and a fair trial (i) by the prosecutions [sic] suppression of Brady material that another individual had stabbed the victim; (ii) that the admission of * * * out-of-court conversations violated the Confrontation Clause; [and] (iii) that New York Penal Law § 125.25(2) (murder with depraved indifference) is unconstitutionally vague * * *.

On October 19, 2004, nearly six months after DiSimone had filed his federal habeas petition and more than seventeen months after his conviction had become final, the New York Court of Appeals decided People v. Payne, 3 N.Y.3d 266, 819 N.E.2d 634, 786 N.Y.S.2d 116 (N.Y.2004), in which the court announced that depraved indifference murder could not properly be charged in most "one-on-one" shootings or knifings. The Payne court explained:

[I]f a defendant fatally shoots the intended victim once, it could be murder, manslaughter in the first or second degree or criminal negligence (or self-defense), but not depraved indifferent murder. Moreover, it should be obvious that the more the defendant shoots (or stabs or bludgeons) the victim, the more clearly intentional is the homicide. Firing more rounds or inflicting more wounds does not make the act more depravedly indifferent, but more intentional. Absent the type of circumstances in, for example, Sanchez² (where others were endangered), a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder.

Payne, 3 N.Y.3d at 272, 786 N.Y.S.2d 116, 819 N.E.2d 634 (second emphasis in original).

In a Reply Memorandum to the district court on January 4, 2005, DiSimone, recognizing the possible relevance and usefulness of the Payne decision, argued for the first time that the evidence in his case was insufficient to support a conviction for depraved indifference murder. 25 Citing the United States Supreme Court's decisions in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), petitioner argued that he "was convicted of recklessness under factual circumstances which New York's highest court has held can only show intent." The prosecution objected that while DiSimone had raised a void-for-vagueness challenge in the state courts, he had failed to challenge the sufficiency of the evidence there.

The New York Court of Appeals's Payne decision raised an important question of state law that might be dispositive of the federal question raised in DiSimone's habeas petition:³ Does Payne's holding apply retroactively to convictions that had become final prior to the court's ruling?⁴ The district court, reasoning that "[o]ur federalism requires deference [to the state courts] * * * and that the Courts of New York have a full and effective opportunity to address these points," stayed the case for thirty days to allow DiSimone to argue in the state courts that Payne should apply retroactively to his case. In accordance with the stay, DiSimone filed a petition raising his insufficiency claim in New York County Court, County of Westchester (Zambelli, J.) ("Westchester County Court") — only to have that court conclude that his insufficiency claim was procedurally barred because "[s]ufficiency of the trial evidence can be reviewed only by direct appeal." The Westchester County Court also concluded that DiSimone had failed to preserve the issue of legal insufficiency on direct appeal, and that his failure to do so was not justified on the ground that it would have been "futile" for him to raise the claim at the time.⁵ The Appellate Division denied, without opinion, DiSimone's motion for leave to appeal.

In spite of the Westchester County Court's ruling, the district court proceeded to grant habeas relief on November 30, 2005, after concluding: (a) that DiSimone's insufficiency claim had in fact been adequately raised in the state courts, and (b) that, on the merits, the evidence was insufficient to convict DiSimone of depraved indifference murder. DiSimone v. Phillips, 04 Civ. 3128 (S.D.N.Y.2005). The writ, which did not extend to DiSimone's conviction for tampering with physical evidence, was stayed pending appeal.

We reverse the district court's grant of habeas and hold that raising a void-for-vagueness challenge in state court does not, without more, suffice to preserve the "substance" of an insufficiency claim for purposes of federal habeas. As a result, DiSimone's insufficiency claim was procedurally barred, and given that DiSimone failed to show cause and prejudice or actual innocence, habeas relief was not available to him on that claim. 28 U.S.C. § 2254(b)(1). See Jackson v. Edwards, 404 F.3d 612, 618 (2d Cir.2005) ("To be eligible for habeas relief, the `substance' of [petitioner's] * * * claim * * * must have been `fairly presented' to the appropriate state appellate court." (quoting Picard v. Connor, 404 U.S. 270, 275, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971))).

We conclude, however, that — unless DiSimone or his defense counsel "`either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence,'" United States v. Payne, 63 F.3d 1200, 1208 (2d Cir.1995) (quoting United States v. Zackson, 6 F.3d 911, 918 (2d Cir.1993)) — the government prejudicially violated its Brady obligations by failing to disclose information about another stabber until near the end of the prosecution's case. Accordingly, and in light of the district court's summary dismissal of DiSimone's Brady claim, we remand the case to that court for further fact-finding as to the extent of DiSimone's or his defense counsel's knowledge of that Brady information.

Finally, for reasons explained below, we refrain from ruling on DiSimone's Confrontation Clause claim.⁶

BACKGROUND

I. The Fight

Sometime in the early morning of February 4, 1994, Louis Balancio and a few friends, who had been bar-hopping in New Rochelle and Yonkers, New York, made their way to the "Strike Zone" in Yonkers. For reasons the record does not specify, the bouncer at that bar refused to let them in. At about the same time, a group of Albanians also were denied admission, and in short order a fight broke out in front of the entrance to the bar. Although it is not clear what sparked the fight,⁷ the evidence at trial indicated that the victim Balancio participated in it. The trial evidence further indicated that Balancio died of stab wounds received during the melee.

The autopsy report described Balancio's wounds in detail. It established that Balancio was stabbed thirteen times — four times in the front of his body, six times in the back, and three times on the upper left arm. One stabbing pierced the upper lobe of the Balancio's left lung and another pierced his heart. The medical examiner concluded that each of the thirteen wounds contributed to his death, and that death would have followed within fifteen minutes from massive blood loss. Balancio died of his wounds at approximately 2:15 a.m., not long after the fight began.

II. The Trial

Shortly after DiSimone surrendered to police, after being in hiding from police for more than five years, he was indicted and a jury trial was held in October of 2000. The prosecution's trial evidence consisted primarily of the testimony of eyewitnesses, none of whom actually saw DiSimone stab Balancio. The prosecution's principal witness was Darin Mazzarella, who entered into a cooperation agreement with the FBI in the summer of 1997 in exchange for leniency over an unrelated case involving a murder and cover-up in which he was implicated.

Mazzarella testified to the following facts. He and another individual named Eric Tofty were, at the time of Balancio's death, friends of DiSimone, and were both present at the Strike Zone during the night of February 3 and morning of February 4, 1994. Moments after the fight broke out, people...