Epps v. Poole

• Decision Date: 09 August 2012
• Docket Number: Docket No. 10–2206–pr.
• Citation: 687 F.3d 46
• Parties: Darnell EPPS, Petitioner–Appellant, v. Thomas POOLE, Warden, Five Points Correctional Facility, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

687 F.3d 46

Darnell EPPS, Petitioner–Appellant,

v.Thomas POOLE, Warden, Five Points Correctional Facility, Respondent–Appellee.

Docket No. 10–2206–pr.

United States Court of Appeals, Second Circuit.

Argued: April 25, 2012.

Decided: June 21, 2012.

Amended: Aug. 9, 2012.

Jonathan I. Edelstein, Edelstein & Grossman, New York, NY, for Petitioner–Appellant.

Seth M. Lieberman, Assistant District Attorney (Charles J. Hynes, District Attorney, on the brief, Leonard Joblove, Assistant District Attorney, of counsel), Office of the District Attorney, King's County, Brooklyn, NY, for Respondent–Appellee.

Before: WINTER, JOHN M. WALKER, JR., and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

This is the fourth in a series of recent cases to come before us challenging New York State second-degree murder convictions on grounds that the evidence presented to the jury could support only a conviction for intentional murder under N.Y. Penal Law § 125.25(1), and not “depraved indifference” murder under § 125.25(2).¹See Garbutt v. Conway, 668 F.3d 79 (2d Cir.2012); Parker v. Ercole, 666 F.3d 830 (2d Cir.2012); Rivera v. Cuomo, 664 F.3d 20 (2d Cir.2011). In each of these cases, the petitioner advanced the somewhat perverse argument that he should be released from state custody because the evidence suggests he is in fact more culpable than the jury had found him to be. In each case, the New York courts rejected that argument, and in each case, we affirmed the dismissal of the petition for habeas corpus, recognizing that it is not our place to tell New York courts that they do not understand evolving New York law.

The trend continues here. Appealing from a judgment of the United States District Court for the Eastern District of New York (Raymond J. Dearie, Judge ) denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254, petitioner-appellant Darnell Epps (“petitioner,” “Epps,” or “Darnell”) contends that the evidence at his trial was insufficient to support his conviction for depraved-indifference murder as an accomplice because his brother Darryl, the principal who in fact shot the victim, clearly acted with the intent to kill. The Appellate Division of the New York Supreme Court rejected this argument, holding that, under New York law at the time Epps's conviction became final, the evidence was sufficient to support the jury's verdict. See People v. Epps, 38 A.D.3d 916, 831 N.Y.S.2d 341 (2d Dep't 2007).

Upon review of the record and the arguments of counsel, we conclude that the Appellate Division's decision was not contrary to, or based on an unreasonable application of, clearly established federal law as determined by the Supreme Court. We therefore affirm the judgment of the District Court dismissing Epps's petition, substantially for the reasons stated by Judge Dearie in his thorough and well-reasoned Memorandum and Order of May 14, 2010. See Epps v. Poole, No. 07 cv 3432, 2010 WL 1991517 (E.D.N.Y. May 14, 2010). We write merely to locate this case within the jurisprudence of our Court and that of the New York Court of Appeals.

Background

In view of Epps's conviction, we recite the pertinent facts in the light most favorable to the verdict. See, e.g., Garbutt, 668 F.3d at 80.

In the early morning hours of March 8, 2000, Darnell Epps was sitting in a van parked outside a convenience store when he was informed by an acquaintance, Jesus Plazza, that Derek Warren—who was inside the store with a friend, Randy Jiles—“was calling [Darnell] a pussy.” Darnell seemed unperturbed and drove off in the van. Some time later, however, while Warren and Jiles were still inside the store, Darnell phoned the store and asked for Plazza, who was standing outside selling drugs. When Plazza came to the phone, Darnell told him to leave the store “because something might happen, it was not safe there.” Plazza and some others left the scene, while Warren, Jiles, another customer named Kenny, and two store employees remained inside.

At approximately 2:30 a.m., Darnell entered the store, followed by his brother, Darryl, who “came in fast.” Darryl, brandishing a gun, approached Warren, grabbed him around the neck, and said “I told you to stay out of this store.” Warren then “st[u]ck his arm up on the gun” and “[t]he gun [went] off.” Darnell instinctually drew his own gun, and pointed it at Jiles. Darryl rapidly fired four more shots into Warren's head and neck. As Darnell later testified, everything “happened so fast” that he did not know whether the first shot was intentionally fired by Darryl or whether the gun had gone off by accident. Although police later confirmed that the only bullets fired came from Darryl's gun, Darryl himself was somehow shot in the encounter.

Darnell turned himself in five days later. He gave conflicting accounts in two written and two videotaped statements, initially telling police that an “older-looking” Latino man had shot Warren, but later admittingthat his brother was the shooter and had asked that Darnell “back [him] up.” Darnell was charged with one count of second-degree “depraved-indifference” murder, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree, each under an “acting in concert” theory.

After Darryl pleaded guilty to second-degree intentional murder, Darnell was tried before a jury and, on October 11, 2000, found guilty of second-degree depraved-indifference murder; he was acquitted on the weapons possession charges. On November 15, 2000, he was sentenced to an indeterminate term of seventeen and one-half years to life in prison, the same sentence received by his brother.

On appeal, Darnell argued that, because Darryl's actions were intentional and not reckless, the evidence was insufficient to convict Darnell as an accomplice to depraved-indifference murder. The Appellate Division denied the claim as both unpreserved and without merit and affirmed his conviction by order of April 11, 2003. People v. Epps, 305 A.D.2d 697, 759 N.Y.S.2d 893 (2d Dep't 2003). Leave to appeal was denied on September 15, 2003, and his conviction became “final” on December 15, 2003. Cf. Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) (“[A] judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction.”); ² S.Ct. R. 13(1) (establishing ninety-day period for filing petition for writ of certiorari).³

On June 10, 2003, before Epps's conviction became final, the New York Court of Appeals decided People v. Hafeez, 100 N.Y.2d 253, 762 N.Y.S.2d 572, 792 N.E.2d 1060 (2003), in which it reversed a depraved-indifference murder conviction based on accomplice liability where the attack on the victim was “quintessentially intentional.” Id. at 258, 762 N.Y.S.2d 572, 792 N.E.2d 1060. Thereafter, Epps moved to vacate his conviction under New York Criminal Procedure Law § 440.10, arguing that Hafeez had changed New York's depraved-indifference murder law such that his conviction could no longer be deemed to be supported by the evidence. By decision dated August 1, 2005, the Supreme Court, King's County, denied the motion, concluding that, even if Hafeez marked a change in the law, Epps was not entitled to relief. The Appellate Division affirmed, holding that “[e]ven under the standard espoused in People v. Hafeez, which was decided after this court rendered its decision and order on the defendant's direct appeal[,] but before his conviction became final, the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.” People v. Epps, 38 A.D.3d 916, 831 N.Y.S.2d 341, 342 (2d Dep't 2007) (internal citations omitted).

On August 1, 2007, Epps filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He argued that, under New York law at the time his conviction became final, the evidence produced at trial was consistent only with an intentional murder and, consequently, insufficient to support his conviction for depraved-indifference murder as an accomplice. He also raised a claim of ineffective assistance of counsel. The District Court denied the petition on both grounds. See Epps v. Poole, No. 07–cv–3432, 2010 WL 1991517 (E.D.N.Y. May 14, 2010). We granted a certificate of appealability on the sufficiency claim and now affirm the judgment of the District Court.

Discussion

We review de novo a district court's denial of a petition for a writ of habeas corpus. See Henry v. Ricks, 578 F.3d 134, 137 (2d Cir.2009). The writ may not issue for any claim adjudicated on the merits by a state court unless the state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). The state court's findings of fact are presumed to be correct unless the petitioner can rebut this presumption by clear and convincing evidence. Id. § 2254(e)(1). The petitioner bears the ultimate burden of proving by a preponderance of the evidence that his constitutional rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir.1997).

In cases challenging the sufficiency of the evidence supporting a state-court criminal conviction, our concern is not with the state courts' application of the state law defining the offense, but rather with the state courts' application of federal law, and, in particular, the sufficiency standard set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements...