Fink v. Bennett

• Decision Date: 26 September 2007
• Docket Number: No. 9:00-CV-0200 (NPM).,9:00-CV-0200 (NPM).
• Citation: 514 F.Supp.2d 383
• Parties: Jay FINK, Petitioner, v. Floyd BENNETT, Superintendent, Elmira Correctional Facility, Respondent.
• Court: U.S. District Court — Northern District of New York

514 F.Supp.2d 383

Jay FINK, Petitioner, v. Floyd BENNETT, Superintendent, Elmira Correctional Facility, Respondent.

No. 9:00-CV-0200 (NPM).

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

September 26, 2007.

COPYRIGHT MATERIAL OMITTED

Jay Fink, Malone, NY, pro se.

Hon. Andrew Cuomo, Office of Attorney General, Senta B. Siuda, Esq., Asst. Attorney General, of Counsel, Syracuse, NY, for the Respondent.

MEMORANDUM-DECISION AND ORDER

NEAL P. McCURN, Senior District Judge.

I. Background

A. State Court Proceedings

The testimony at trial revealed that on Saturday evening, August 26, 1995, petitioner, pro se Jay Fink, together with Jack Keller, Walter Hagadorn and his girlfriend, Penny Hendershot, were drinking beer at the home which Hagadorn and Hendershot shared on Prospect Street in Binghamton, New York ("Prospect Street home"). See Transcript of Trial of Jay Fink (5/13/96) ("Trial Tr.") at 393-94. When the group ran out of beer, they went to a local bar and, when the bartender refused to sell them beer, they left the area and began walking down the street. Trial Tr. at 529-30: Michael Murray, who happened to be driving through the neighborhood at this time, stopped his car after he heard Fink calling out to Murray to stop. Trial Tr. at 530, 674. He allowed them into his car, and, when he indicated that he did not know where he could buy beer, it was suggested to Murray that he drive to a local twenty-four hour convenience store. Trial Tr. at 530. Murray drove to the store, and Fink and Keller went in that establishment to purchase some alcohol. After purchasing the beer, the two got back into Murray's car and he drove them back to the Prospect Street home, where Murray joined the group drinking beer. Trial Tr. at 531-32. As the evening progressed, Hendershot overheard Fink and Keller speculating that Murray might be a homosexual. Trial Tr. at 532-33. Keller eventually exclaimed to Hagadorn and Fink that Murray was "a faggot, we ought to kill him." Trial Tr. at 818. Fink, Keller, Hagadorn and Murray thereafter drove toward a nearby river and, when they arrived, Keller and Murray got out of the car and approached the river while Hagadorn and Fink drank some beer in Murray's car. Trial Tr. at 395-96. Keller returned to the car without Murray and asked Hagadorn and Fink "[w]hat are you guys waiting for?" Trial Tr. at 396. He then directed the two to "[g]rab a rock or a stick or something." Trial Tr. at 396. Hagadorn and Fink each grabbed a stick and approached Murray from behind. Trial Tr. at 396-97. Hagadorn hit Murray in the back of his head, Trial Tr. at 397, and, when Murray began to run away, Hagadorn tackled him and punched him in his face. Trial Tr. at 397. Keller and Fink then began kicking Murray, who was on the ground, "all over his body," including his head and stomach. Trial Tr. at 397-98.¹ Keller eventually ran back to the car, grabbed a screwdriver and, after the other men refused to take it from him, he began stabbing Murray with the screwdriver in his throat and chest, exclaiming that Murray had to be killed because he could identify the perpetrators of the assault. Trial Tr. at 398-99. When Keller finished stabbing Murray, he asked Hagadorn and Fink for their help in disposing of the body into the river. Trial Tr. at 399. Fink obliged and helped dragged Murray toward the river. Trial Tr. at 401.² After the two rejoined Hagadorn at the top of the embankment, the three men entered Murray's car and Fink drove the trio to a house where Keller picked up some clean clothes. Trial Tr. at 401-02.

On Sunday morning, the three men began driving to New York City. Trial Tr. at 403. On the way there, one of the tires on the car became flat so the group decided to take a train into New York City. Trial Tr. at 403-04. During that trip, Keller purportedly threatened to harm the others if they informed anyone about the murder. Trial Tr. at 405. Notwithstanding that warning, when Hagadorn eventually returned to Binghamton, he told several people about what had transpired. Trial Tr. at 409. One of Hagadorn's friends then called the police and handed the phone to Hagadorn, who spoke with law enforcement agents and directed them to the scene of the crime. Trial Tr. at 409-10. Based upon their discussion with Hagadorn, the police began looking for Fink, who was eventually arrested in New York City in early October, 1995. Trial Tr. at 572-73.

On October 13, 1995, a Broome County grand jury returned an indictment against Fink, Keller and Hagadorn, charging the men with two counts of second degree murder. The first count in that accusatory instrument alleged that the three intentionally killed Murray, while the second charged those defendants with causing Murray's death "under circumstances evincing a depraved indifference to human life." See Indictment No. 95-576 ("Indictment"). Fink's jury trial on those charges commenced in Broome County Court on June 10, 1996 with County Court Judge Patrick H. Mathews presiding. At the conclusion of that trial, Fink was found not guilty of the intentional murder of Murray, but guilty of his depraved indifference murder. Trial Tr. at 1035. Fink appeared before Judge Mathews for sentencing on July 16, 1996, and was sentenced to a term of imprisonment of twenty-five years to life. See Transcript of Sentencing of Jay Fink (7/16/96) at 35.

Fink appealed his conviction to the New York State Supreme Court, Appellate Division, Third Department. In his appellate brief, Fink's appellate counsel argued that: i) the jury's guilty verdict was flawed and contrary to the evidence adduced at trial; the trial court improperly denied two mistrial applications made by defense counsel during the course of Fink's trial; and the sentence imposed on Fink was harsh and excessive. See Appellate Brief on Appeal (1/31/98) ("App.Br."). The Broome County district attorney opposed that appeal, and on June 11, 1998, the Third Department unanimously affirmed Fink's conviction. See People v. Fink, 251 A.D.2d 751, 674 N.Y.S.2d 793 (3rd Dep't 1998). The Court of Appeals subsequently denied Fink's application for leave to appeal to that court. See People v. Fink, 92 N.Y.2d 924, 680 N.Y.S.2d 465, 703 N.E.2d 277 (1998).

On March 23, 1999, Fink filed a motion to vacate his judgment of conviction pursuant to New York's Criminal Procedure Law ("CPL"), section 440.10 ("CPL Motion"). In that application, Fink alleged that: i) his conviction was the product of prosecutorial misconduct, which included the withholding of Brady³ material from Fink's defense; and the trial court's instructions to the jury were confusing and wrongfully shifted the burden of proof to the defense. See CPL Motion, Points I, II. That application was opposed by the Broome County district attorney, and in his Decision and Order dated November 10, 1999, Judge Mathews denied the motion. See People v. Fink, No. 95-516 (Broome Cty. Ct. Nov. 10, 1999) ("November, 1999 Order"). Fink did not seek leave to appeal the denial of his CPL § 440 motion from the Appellate Division. See Petition at ¶ 11(c)(1).

B. This Action

Fink filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 in this District on February 2, 2000. Dkt. No. I. In his pleading, Fink alleges that: i) his conviction was the result of prosecutorial misconduct, including the district attorney's failure to provide defense counsel with all Brady material to which the defense was entitled; the jury charge provided by the County Court was confusing and wrongfully shifted the burden of proof to Fink; and iii) the evidence adduced at trial was insufficient to support the jury's verdict. See Petition, Grounds One through Three. After reviewing the petition, Fink's in forma pauperis application and the file in this matter, United States District Judge Lawrence E. Kahn ordered Fink to pay the filing fee required for this action, and directed the respondent to file a response to Fink's petition. Dkt. No. 3. The Office of the Attorney General for the State of New York, acting on respondent's behalf, subsequently filed an answer in opposition to Fink's application. Dkt. No. 9. Respondent also filed a memorandum of law requesting dismissal of the petition. Dkt. No. 10 ("Resp. Mem."). On January 9, 2006, this matter was re-assigned to the undersigned for disposition pursuant to the order of then-Chief Judge Frederick J. Scullin, Jr. See Dkt. No. 14.

B. Review of Petition

1. Procedurally Forfeited Claim

Respondent initially argues that Fink's first ground for relief must be denied because he is procedurally barred from asserting such claim. See Resp. Mem. at 5-6.

Prior to seeking federal habeas relief, a petitioner must exhaust available state remedies, or demonstrate that there is either an absence of available state remedies or that such remedies cannot adequately protect his rights. Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir.2001) (quoting 28 U.S.C. § 2254(b)(1)); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir.1994). This is because "[s]tate courts, like federal courts, are obliged to enforce federal law." Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir.), cert denied sub nom., Galdamez v. Fischer, 544 U.S. 1025, 125 S.Ct. 1996, 161 L.Ed.2d 868 (2005) (citation omitted). As the Supreme Court noted in O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999): "[C]omity ... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." Id., 526 U.S. at 844, 119 S.Ct. 1728; see also Galdamez, 394 F.3d at 72 (quoting O'Sullivan).⁴ Furthermore, it is clear that habeas corpus petitioners bear the burden of demonstrating that they have fully exhausted available state remedies. See Brown v. People of the State of New York No. 04-CV-1087, 2006 WL 3085704, at *5 (E.D.N.Y. Oct. 30, 2006); Cruz v. Artuz, 97-CV-2508, 2002 WL 1359386,...