Fagan v. Kuhlman

Decision Date10 June 2003
Docket NumberNo. 99 CV 2591(jbw),03,No. MISC 0066(JBW).,99 CV 2591(jbw),03,MISC 0066(JBW).
Citation267 F.Supp.2d 388
PartiesCalbert FAGAN, Petitioner, v. Robert KUHLMAN, Respondent.
CourtU.S. District Court — Eastern District of New York
267 F.Supp.2d 388
Calbert FAGAN, Petitioner,
v.
Robert KUHLMAN, Respondent.
No. 99 CV 2591(jbw),03
No. MISC 0066(JBW).
United States District Court, E.D. New York.
June 10, 2003.

Page 389

COPYRIGHT MATERIAL OMITTED

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Patricia A. Murphy, Riverhead, NY, for Respondent.

MEMORANDUM ORDER AND JUDGMENT

WEINSTEIN, Senior District Judge.


A hearing was set for July 25, 2003, at 2 p.m. A thorough examination of the record indicates that no hearing is required. The matter can be decided on the basis of the extensive papers before the court.

A direct appeal from a conviction in a federal district court might well have led to a reversal based upon the trial court's solution to a hearsay problem. Nevertheless, this evidence issue does not warrant granting a writ collaterally attacking a state court conviction. See 28 U.S.C. § 2254.

Procedure in State Court

On direct appeal the Appellate Division affirmed petitioner's conviction for murder in the second degree. See People v. Fagan, 240 A.D.2d 593, (559 N.Y.S.2d 982 (2d Dep't 1997). It found the verdict was not against the weight of evidence and the sentence was not excessive. Other "remaining contentions are either unpreserved for appellate review, without merit, or do not warrant reversal," was the Appellate Division's conclusion. Id. at 983. It noted that "[t]he appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements he made to the police." Id. at 982.

In a sound appellate brief, an attorney for petitioner from the Legal Aid Society had argued that it was error to deny suppression of petitioner's statement to the police before they administered his Miranda warnings; error to admit testimony that the deceased feared petitioner; error to admit a knife because it was found on the basis of a search warrant when the warrant was not timely filed; error because trial counsel failed to pursue the defense of extreme emotional disturbance; error because guilt Was not established by the evidence beyond a reasonable doubt; and error because the sentence of 25 years to life was harsh and excessive.

In an appendix to the brief petitioner's appellate counsel included a report of a forensic psychologist concluding in part that "once the confrontation between Mr. Fagan and his wife [the deceased] took place, his underlying feelings of anger and resentment erupted and he lost the ability to control his actions and behavior." Appendix to Appellant's brief, Supreme

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Court, Appellate Division, Second Department, filed June 4, 1997, at 7. The report had not been offered at trial, but it was introduced at sentencing. Sentencing Transcript at 6-9.

Sentencing

At the sentence the trial court rejected the motion to set aside the verdict. See id. at 9-10. It did review the psychologist's report for sentencing purposes when it was offered by the prosecutor who contended that it "was not very favorable to defendant ... [on] mental deviance or disorder." Id. at 7-8. Defense counsel's objection to its receipt was overruled. The court noted that:

There had been some discussion about the possibility of the defendants' seeking a[sic] extreme emotional disturbance defense. However that was not raised to the jury ...

Id. at 8-9.

The essence of the case was stated at the sentencing by the prosecution:

The crime that he committed, and the crime that he was found guilty of, was Intentional Murder. It was a brutal murder of his estranged wife, the mother of small children. He stabbed her repeatedly after lying in wait for her in a closet with a knife in his hand. [T]hat, brutal action in and of itself would mandate that this defendant spend 25 years in the state penal facility. In addition, the court is aware that the defendant has been through the justice system on previous occasions and was in fact on felony probation for arson, felony arson, and weapons charges when this crime occurred. This gentleman obviously cannot be rehabilitated, and should not be permitted to go free into society again.

Id. at 18-19.

Trial defense counsel made a fair argument on sentence without relying on an emotional defense. See id. at 10-17, 20-23. Petitioner was tendered to the court's mercy, with little avail.

I do not believe that Mr. Fagan is on probation for both arson and weapons charges. I believe it's only a weapons charge, not to mitigate that by any stretch of the imagination. Certainly we shouldn't make it out to be more than it is.

Your Honor, clearly this is a very unfortunate set of circumstances that has taken place.

As the Court is aware, Mr. Fagan has been convicted of Second Degree Murder, Intentional Second Degree Murder, but I believe what the evidence has shown at trial was despite the transaction that took place, Mr. Fagan clearly made an attempt to save the life of the victim, Maxine Fagan.

Mr. Fagan certainly could have taken any other courses of action rather than go directly to the police station requesting an ambulance.

As the Court is aware, as the evidence was submitted to the jury, he in fact did go to the police station. It is also unfortunate, your Honor, that the presentence report does not portray the [sic], give any evidence as to the pedigree of this individual and demonstrate to the Court this is a man who is, had a frankly an extensive work history during his time in the [sic], has had steady employment and has been able to provide for a wife and two children ... and does in fact have some redeeming qualities in as much as he is a caring father of his two children.

Obviously, the jury has spoken, and I'm not going to take any further issue with regard to the facts of this case. But I do believe that there are, as I set forth, there are some mitigating considerations

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that this Court should address when sentencing Mr. Fagan, and although Mr. Fagan did not make a statement to the probation department as I already advised the Court, it should be noted that Mr. Fagan did not do so again on the advice of counsel.

I assure the Court that Mr. Fagan is very remorseful for what happened as he has expressed to me on many occasions, but unfortunately in light of our system of jurisprudence, I advised him not to go any further with the probation department in terms of the statements he should make.

Judge, in light of all that, I know that the Court has no choice but to sentence Mr. Fagan to a lengthy term of incarceration, but what I would do, at this time, I ask that the Court look to the mitigating factors that exist in this matter and sentence Mr. Fagan to something less than the maximum that is being requested by the district attorney.

Thank you.

THE COURT: Mr. Fagan, anything you wish to state?

THE DEFENDANT: Yes. I would like to say I'm sorry for what happened, and what happened wasn't intended to do anything this bad. I'm sorry for what happened. I would like to say that.

Id. 20-23.

The trial court's impression was summarized as follows:

Murder comes in many shapes and sizes. Some people that are murdered never know what is coming, they just die. This is not one of those cases. Whatever the motivation was, Mr. Fagan subjected his estranged wife to a brutal slaying. I can only imagine the abject terror that must have existed in the mind of his estranged wife as she realized she was being slain. The brutality of the crime is just beyond most human comprehension that this vicious stabbing would go on, and after the knife was broken, to proceed to get another knife to finish the job. It just, it boggles the mind that one human being could engage in such wanton brutality. Again, I don't understand how a human being could be capable of doing this, but Mr. Fagan did. And our law provides that he can receive 25 years to life as the maximum sentence, and that is the sentence that he will receive from this Court.

Therefore, the defendant will be incarcerated in the state penal facility for a maximum of life incarceration, and a minimum of 25 years.

Id. 23-24.

Guilt of the homicide was concededly established beyond a reasonable doubt. The only question was the degree of the crime.

Section 440.10 collateral post-appeal motions were filed. Denials were appealed without relief being granted. See the extensive papers on the first and second appeals from petitioner's section 440.10 applications.

Originally brought in the Southern District of New York, the case was transferred to the District Court for the Eastern District of New York. An enlarged file has accumulated.

AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme

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Court of the United States; or (2) resulted in a decision that 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); Price v. Vincent, ___ U.S. ___, 123 S.Ct. 1848,1852,155 L.Ed.2d 877 (2003).

An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir.2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir.1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the...

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