Haymon v. New York, 02-CV-6427L.

• Decision Date: 11 August 2004
• Docket Number: No. 02-CV-6427L.,02-CV-6427L.
• Citation: 332 F.Supp.2d 550
• Parties: Alen HAYMON, Petitioner, v. The State of NEW YORK, Respondent.
• Court: U.S. District Court — Western District of New York

332 F.Supp.2d 550

Alen HAYMON, Petitioner, v. The State of NEW YORK, Respondent.

No. 02-CV-6427L.

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

August 11, 2004.

COPYRIGHT MATERIAL OMITTED

Alen E. Haymon, Auburn, NY, pro se.

Loretta S. Courtney, Rochester, NY, for Defendant.

DECISION AND ORDER

LARIMER, District Judge.

INTRODUCTION

Petitioner, Alen Haymon ("Haymon"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on one count of second degree (felony) murder and one count of attempted first degree robbery.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On June 3, 1993, Haymon and Omar Sheriff ("Sheriff") attempted to rob a Rochester gas station and in the course of doing so, shot and killed the owner, 65-year-old Attilio Russo ("Russo"). Haymon and Sheriff, both armed with handguns, rode their bicycles to the gas station. Sheriff first confronted Russo and Anthony Thanos ("Thanos"), another employee in the office, but Russo threw a chair at him and Haymon departed. Haymon then re-entered the office and shot Russo in the chest. (Russo received medical treatment for his wounds, but ultimately died from them.) Neither Thanos nor Bob Lee, another eyewitness to the crime, could identify Haymon as one of the robbers.

The robbery ultimately yielded no money. Haymon and Sheriff then fled on their bicycles to the home of Antwana Davis ("Davis"). According to Davis, Haymon admitted that he and Sheriff had tried to rob the gas station. Haymon allegedly told Davis that he had pointed the gun at Russo, who pushed it away. When Haymon directed the gun toward Russo again, it "accidentally" went off, striking Russo in the chest.

Ballistics evidence testing confirmed that Russo was killed by a bullet from a .22-caliber gun. Both Haymon and Sheriff previously had been seen in possession of a .22-caliber revolver about two or three weeks prior to the Russo murder.

In the meantime, Haymon fled to Florida. When he finally was located there, he was arrested and extradited to New York. Haymon gave a detailed written statement to police in which he admitted the robbery by claimed that the shooting was accidental. Haymon claimed that it was Sheriff's idea to rob the gas station. He stated that he was armed with a black .22-caliber revolver, and Sheriff had a .25-caliber semi-automatic handgun (which allegedly did not work). When they first went to the gas station, they entered the office and Sheriff pointed his gun at the other employee (a "short, stocky" man) and told him to "give it up." Russo, whom he described as "slim", then pushed Haymon out the door. Haymon returned and pointed his gun at Russo while Sheriff urged him to shoot Russo. According to Haymon, Russo grabbed his gun, and as Haymon pulled his hand back the gun discharged, shooting Russo in the chest.

Sheriff told Russo to "get the money," but Haymon left. The two rode away on their bicycles and later met up at Davis's house. Haymon claimed that he brought the .22-caliber gun with him to Florida, where he gave it to a friend who subsequently was "robbed for the gun." See T.638-41.¹

Haymon was indicted on October 7, 1993, on one count of second degree murder, one count of first degree attempted burglary, and two counts of criminal possession of a weapon.²

Following a jury trial in Monroe County Court (Smith, J.), Haymon was convicted and received a sentence of 25 years to life on the felony murder charge and a concurrent sentence of 5 to 15 years on the attempted robbery charge.

The Appellate Division, Fourth Department, unanimously affirmed his conviction on November 13, 2000. People v. Haymon, 277 A.D.2d 971, 716 N.Y.S.2d 848 (4th Dept.2000). The New York Court of Appeals denied leave to appeal on April 11, 2001. People v. Haymon, 96 N.Y.2d 800, 726 N.Y.S.2d 378, 750 N.E.2d 80 (2001).

This habeas petition followed in which Haymon raises two grounds for habeas relief: (1) the admission of statements by his non-testifying accomplice, Sheriff, violated the Confrontation Clause; and (2) the state court's evidentiary ruling on the admission of these statements abridged his due process right to a fair trial.

DISCUSSION

I. Exhaustion

A petitioner must exhaust all available state remedies either on direct appeal or through a collateral attack of his conviction before he may seek a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995). The exhaustion of state remedies requirement means that the petitioner must have presented his constitutional claim to the highest state court from which a decision can be obtained. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir.2000) (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir.1991)). A claim is properly exhausted when the state court is fairly apprised of the claim's federal nature and of the factual and legal premises underlying the claim. Grey, 933 F.2d at 119-20.

A habeas petitioner has a number of ways to fairly present a claim in state court without citing "chapter and verse" of the Constitution, including "(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir.1982) (en banc); accord, e.g., Strogov v. Attorney General, 191 F.3d 188, 191 (2d Cir.1999).

Respondent asserts that Haymon's due process claim based on an alleged violation of the Fourteenth Amendment is unexhausted. In his "Brief in Opposition" (Docket # 8), Haymon states that his claim "to Federal review of Equal Protection rises to a Constitutional violation due to a State Court's decision in an Evidentiary ruling `if it was so egregious that it rendered the Petitioner's trial fundamentally unfair in violation of due process.'" Id. at 5 (citations omitted). Haymon argues that the evidence against him was not overwhelming, and he points out that he was not identified by the eyewitnesses at trial. Id. In support of this statement, he cites to the portion of his state appellate brief in which he argued that the introduction of Sheriff's statements violated the New York state law evidentiary rule against hearsay.

Reviewing that portion of Haymon's state appellate brief, it appears that counsel was attempting to demonstrate a violation of People v. Brensic, 70 N.Y.2d 9, 517 N.Y.S.2d 120, 509 N.E.2d 1226 (1987), which articulated the prerequisites for introducing the statements of a non-testifying third party as a declaration against that individual's penal interest, an exception to the hearsay rule in New York. In Brensic, the defendants claimed that the admission of such evidence as declarations against penal interest violated New York evidentiary law and denied them their rights of confrontation and due process under the federal and state Constitutions. Id. at 13. The court of appeals in Brensic agreed that admission of the confessions violated the hearsay rule because neither satisfied the prerequisites for reliability set forth in New York state precedent. However, because the court's determination rested solely on state evidentiary grounds, it did not reach defendants' Confrontation Clause claims. Id. Thus, Brensic (and the cases interpreting it cited in Haymon's state appellate brief) did not "employ [ ] constitutional analysis in like fact situations," see Daye, supra, or satisfy any of the alternative methods articulated in Daye for exhausting a claim in state court.

Furthermore, Haymon did not argue on direct appeal that this alleged state law evidentiary error under Brensic denied him of the fundamentally fair trial to which he is entitled. The only analysis of trial error dealt with the alleged Confrontation Clause violation which he argued, on direct appeal, was not harmless error under People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975) (employing the test for harmless constitutional error laid down by the Supreme Court of the United States in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ("[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.")).

Thus, although Haymon asserted on direct appeal that the trial court committed evidentiary error, he framed the argument only as a violation of state law hearsay principles, and he did not claim that the violation denied him of a fundamentally fair trial. In other words, his "harmless error" argument on direct appeal related only to the introduction of Sheriff's statement as a violation of the Confrontation Clause. His present due process claim relates to the admission of Sheriff's statement as a violation of New York's state hearsay rules; this claim was not presented in federal constitutional terms in the state court. Accordingly, it remains unexhausted.

It is clear, however, that Haymon is procedurally barred from returning to state court in order to exhaust this claim. First of all, he has already used the one appeal to the New York Court of Appeals to which he is entitled. See N.Y. Court Rule § 500.10(a). Although Haymon could bring a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, raising this issue on such a motion would be futile; the state court would deny the due process claim pursuant to C.P.L. § 440.10(2)(c) since Haymon could have raised it on direct appeal, but failed to do so. Thus, Haymon's due process claim is "deemed exhausted." See Grey v. Hoke, 933 F.2d at 120-21.

I am precluded from...