Gutierrez v. Smith
| Decision Date | 31 August 2012 |
| Docket Number | Docket No. 10–4478–pr. |
| Parties | Omar GUTIERREZ, Petitioner–Appellant, v. Joseph SMITH, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Jacqueline P. Rubin (Janna Berke, on the brief), Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, N.Y., for Petitioner–Appellant.
Glenn Green, Assistant District Attorney, for Thomas J. Spota, District Attorney, Suffolk County, Riverhead, N.Y., for Respondent–Appellee.
Before: JACOBS, Chief Judge, CALABRESI and POOLER, Circuit Judges.
During a bar brawl, Petitioner–Appellant Omar Gutierrez chased John Villaplana and fatally stabbed him in the chest. Gutierrez was convicted of depraved indifference murder under New York Penal Law § 125.25(2), and sentenced to twenty-five years to life in prison. After the Appellate Division affirmed Gutierrez's conviction and his application for leave to appeal to the New York Court of Appeals was denied, Gutierrez filed a timely petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. In his petition, Gutierrez argued, inter alia, that the evidence introduced at trial was legally insufficient to support his conviction. The district court (Feuerstein, J.), relying on the state court's finding that counsel failed to make a contemporaneous objection at trial to the legal sufficiency of the evidence, dismissed the petition as procedurally barred. We hold that, though the claim was procedurally defaulted, it is nonetheless cognizable on habeas review. Since there was a fundamental shift in New York's interpretation of its depraved indifference murder statute between the time of Gutierrez's trial in 2001 and the time his conviction became final in 2005, the legal basis for a sufficiency challenge was not reasonably available to counsel at the time of trial, establishing “cause” for the failure to object. Accordingly, we REVERSE the district court's dismissal of the petition.
Our review of the merits of Petitioner's claim, however, brings unsettled issues of New York law to the forefront: (a) just how much of what kind of evidence supports depraved indifference convictions in New York, and (b) whether the change in New York's law on depraved indifference murder applies retroactively to defendants like Gutierrez. Because we believe the New York Court of Appeals should be given the opportunity to address these recurring and important questions of New York State law, we CERTIFY them to the New York Court of Appeals.
The facts are not in dispute. On June 13, 1999, Petitioner was involved in a bar brawl in Montauk, Long Island. Gutierrez was at Rick's Crabby Cowboy Café (“Rick's”) when a fight broke out between different groups of patrons. The fight escalated and later continued outside the bar into Rick's parking lot where Gutierrez stabbed Narcisso Luis Villaplana. Gutierrez then pursued John Villaplana to a nearby driveway. There, Gutierrez fatally stabbed John Villaplana in his chest, producing two wound tracks. The presence of two wound tracks might be the result of a retraction and reinsertion of the knife, but could also indicate “the victim moving back, and then the victim for some reason going forward again.” According to trial testimony, Gutierrez fled the scene when a car approached, while Villaplana was still on his feet. The first wound, which passed through Villaplana's heart, was three and three-quarters inches deep, and the second, which pierced his lung, was two and three-quarters inches deep. Though Villaplana also sustained an injury as a result of striking his head on the ground, autopsy results confirmed that a stab wound caused his death.
Gutierrez was charged with: (a) murder in the second degree in violation of New York Penal Law § 125.25(1) (intentional murder) and New York Penal Law § 125.25(2) (depraved indifference murder) in connection with John Villaplana's fatal stabbing, and (b) assault in the third degree in violation of New York Penal Law § 120.00(2) in connection with Narcisso Luis Villaplana's stabbing. At trial, Gutierrez's counsel moved to dismiss the depraved indifference murder charge, on the ground that, “as a matter of law, ... there [was] insufficient evidence to prove a prima facie case.” The trial judge denied the motion, and the jury convicted Gutierrez of depraved indifference murder and assault in the third degree, but acquitted him of intentional murder. Gutierrez was sentenced to an indeterminate term of imprisonment of twenty-five years to life on the depraved indifference conviction and to a concurrent determinate term of imprisonment of one year on the assault conviction.
On direct appeal, Petitioner argued, inter alia, that there was insufficient evidence to support a depraved indifference murder conviction and that New York Penal Law § 125.25(2) was unconstitutionally vague. On February 14, 2005, the Appellate Division affirmed Gutierrez's conviction and sentence, concluding that his legal insufficiency claim was “unpreserved for appellate review,” and that some of Gutierrez's other contentions were “either ... unpreserved for appellate review or without merit.” People v. Gutierrez, 15 A.D.3d 502, 503, 790 N.Y.S.2d 493 (N.Y.App.Div.2d Dep't 2005). On June 14, 2005, Judge Smith, of the New York Court of Appeals, denied Gutierrez's application for leave to appeal to that court. See People v. Gutierrez, 5 N.Y.3d 763, 801 N.Y.S.2d 257, 834 N.E.2d 1267 (2005).
On September 12, 2006, pursuant to New York Criminal Procedure Law § 440. 10, Gutierrez filed a motion to vacate his conviction. After the trial court denied the motion, see People v. Gutierrez, 14 Misc.3d 1213, 836 N.Y.S.2d 488 (Suffolk Cnty.Ct.2007) (unpublished table decision), and the Appellate Division affirmed, see People v. Gutierrez, 57 A.D.3d 1006, 871 N.Y.S.2d 325 (N.Y.App.Div.2d Dep't 2008), Judge Smith of the New York Court of Appeals once again denied Gutierrez's application for leave to appeal to that court, see People v. Gutierrez, 12 N.Y.3d 816, 881 N.Y.S.2d 24, 908 N.E.2d 932 (2009).
On September 12, 2006, Gutierrez also filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court initially stayed the proceedings to permit Gutierrez to pursue his section 440.10 motion, after which Gutierrez filed an amended petition, arguing: (1) that the evidence presented at trial was legally insufficient to support his conviction for depraved indifference murder; (2) that his trial counsel was ineffective for failing to make a specific objection to the legal insufficiency of the evidence at trial; and (3) that New York Penal Law § 125.25(2) was unconstitutionally vague. See Gutierrez v. Smith, No. 06–CV–4939, 2010 WL 3855225, at *3, 2010 U.S. Dist. LEXIS 102137, at *8 (E.D.N.Y. Sept. 27, 2010). In September 2010, the district court denied Gutierrez's petition and declined to issue a certificate of appealability. See id. at *10, 2010 U.S. Dist. LEXIS 102137, at *30–*31. On March 16, 2011, we granted Gutierrez's motion for a certificate of appealability “with respect to [Gutierrez's] claim that the evidence was legally insufficient to support his conviction for depraved indifference murder in violation of New York Penal Law § 125.25(2).”
“Depraved indifference” murder is a type of second degree murder in New York. Specifically, New York Penal Law § 125.25(2) provides that a person is guilty of murder in the second degree when “[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” At the time of Gutierrez's trial in 2001, the law on depraved indifference murder was governed by People v. Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704 (1983). In Register, the defendant entered a crowded bar with a loaded gun. Id. at 273, 469 N.Y.S.2d 599, 457 N.E.2d 704. After entering the bar and threatening to “kill somebody,” id. at 275, 469 N.Y.S.2d 599, 457 N.E.2d 704, he ultimately killed one man and seriously injured two others, id. at 273–74, 469 N.Y.S.2d 599, 457 N.E.2d 704. The Court of Appeals announced that the requisite mens rea for depraved indifference murder was “recklessness,” id. at 278, 469 N.Y.S.2d 599, 457 N.E.2d 704, and held that the crime required a showing of “circumstances evincing a depraved indifference to human life,” id. at 274, 469 N.Y.S.2d 599, 457 N.E.2d 704 (quoting N.Y. Penal Law § 125.25(2)). In upholding the trial court's refusal to instruct the jury that the defendant's intoxication could negate a showing of depraved indifference, the Court noted that “the focus of the offense is not upon the subjective intent of the defendant, as it is with intentional murder, but rather upon an objective assessment of the degree of risk presented by defendant's reckless conduct.” Id. at 277, 469 N.Y.S.2d 599, 457 N.E.2d 704 (citation omitted). In that vein, the Court reasoned that “depraved mind murder is distinguishable from manslaughter, not by the mental element involved but by the objective circumstances in which the act occurs.” Id. at 278, 469 N.Y.S.2d 599, 457 N.E.2d 704.
According to the Court of Appeals, the law as articulated in Register “remained static” until its decision in People v. Sanchez, 98 N.Y.2d 373, 748 N.Y.S.2d 312, 777 N.E.2d 204 (2002). Policano v. Herbert, 7 N.Y.3d 588, 595, 825 N.Y.S.2d 678, 859 N.E.2d 484 (2006). Critically, Sanchezwas decided in 2002, after Gutierrez's trial and conviction. In Sanchez, a 4–3 decision that produced three dissents, a divided Court of Appeals rejected the defendant's argument that his conduct “was consistent only with an intentional killing” and therefore...
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Connelly v. Senkoswki
...finds the arguments therein similarly without merit. 3. The Court is aware of the Second Circuit's recent decision in Gutierrez v. Smith, 692 F.3d 256 (2d Cir. 2012). That opinion has subsequently been withdrawn, and so does not impact the Court's analysis. See Order Withdrawing Opinion, da......