Henry v. Ricks

• Decision Date: 10 August 2009
• Docket Number: Docket No. 07-4178-pr.
• Citation: 578 F.3d 134
• Parties: Lucas HENRY, Petitioner-Appellant, v. Thomas RICKS, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

578 F.3d 134

Lucas HENRY, Petitioner-Appellant, v. Thomas RICKS, Superintendent, Respondent-Appellee.

Docket No. 07-4178-pr.

United States Court of Appeals, Second Circuit.

Argued: June 19, 2009.

Decided: August 10, 2009.

Amended: August 10, 2009.

Lisa E. Fleischmann, Assistant Attorney General (Andrew D. Cuomo, Attorney General, Barbara D. Underwood, Solicitor General, Roseann B. MacKechnie, Deputy Solicitor General for Criminal Matters, on the brief), Office of the Attorney General of the State of New York, New York, NY, for Appellee Thomas Ricks.

Robert N. Isseks (Alex Smith, on the brief), Middletown, NY, for Appellant Lucas Henry.

Before MINER and JOSÉ A. CABRANES, Circuit Judges, and STEIN, District Judge.^*

JOSÉ A. CABRANES, Circuit Judge:

Petitioner-appellant Lucas Henry was convicted in 1997 in New York state court of one count of depraved indifference murder. See N.Y. Penal Law § 125.25(2). He now challenges an August 21, 2007 judgment of the United States District Court for the Northern District of New York (Gary L. Sharpe, Judge) denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Henry v. Ricks, No. 9:01-cv-1361, 2007 WL 2406928, at *2 (N.D.N.Y. Aug. 21, 2007). In accordance with a Certificate of Appealability ("COA") granted by the District Court, Henry contends that the holding of the New York Court of Appeals that "someone who intends to cause serious physical injury does not commit depraved indifference murder," People v. Suarez, 6 N.Y.3d 202, 211, 811 N.Y.S.2d 267, 844 N.E.2d 721 (2005), merely clarified the law applicable at the time of his conviction and that his conviction must be vacated because the evidence adduced at trial demonstrated his intent to cause serious physical injury to his victim, thus making intentional murder a more appropriate charge. Henry also argues that, in any event, "retroactive application [of the aforementioned rule] is mandatory as a matter of federal due process and equal protection." Appellant's Br. 14.

BACKGROUND

The following facts are undisputed except to the extent noted. On February 23, 1993, Henry shot Anthony Bookard in an apartment in the presence of several individuals. Henry immediately departed, leaving those bystanders behind with Bookard, who died in the apartment several minutes later. Later, Henry returned to the apartment and, with the help of several others, placed Bookard's body in the trunk of a car and then buried the body in a snow bank near an elementary school.

On December 20, 1995, an Oneida County grand jury charged Henry with two counts of murder in the second degree— one count of intentional murder in the second degree and one count of murder in the second degree under a depraved indifference theory. N.Y. Penal Law § 125.25. On January 23, 1997, a jury found Henry guilty of depraved indifference murder, in violation of N.Y. Penal Law § 125.25(2),¹ but he was acquitted of intentional murder. On April 4, 1997, Henry was sentenced to an indeterminate prison sentence of twenty-five years to life.

Henry appealed his conviction, arguing, among other things, that the evidence adduced at trial was not sufficient to establish his guilt. The New York State Supreme Court, Appellate Division, affirmed his conviction, People v. Henry, 270 A.D.2d 936, 706 N.Y.S.2d 565 (4th Dep't 2000), and the New York Court of Appeals denied leave to appeal, see People v. Henry, 95 N.Y.2d 905, 716 N.Y.S.2d 646, 739 N.E.2d 1151 (2000).

In 2001, Henry, proceeding pro se, filed a petition for a writ of habeas corpus in the District Court pursuant to 28 U.S.C. § 2254. The District Court referred the matter to Magistrate Judge David E. Peebles, who, on November 2, 2005, filed a report and recommendation advising that Henry's petition be denied. In objecting to the Magistrate Judge's report, Henry argued—this time through counsel—that his conviction could not stand because the intervening holding of the New York Court of Appeals in People v. Suarez, 6 N.Y.3d 202, 811 N.Y.S.2d 267, 844 N.E.2d 721 (2005), which was decided after the Magistrate Judge had filed his report and recommendation, "[made] it clear that a `point[-]blank shooting [is] insufficient to establish depraved indifference murder.'" Petitioner's Objection to the Magistrate Judge's Report and Recommendation, Henry v. Ricks, No. 01-cv-1361, (N.D.N.Y. Feb. 14, 2006) (quoting Suarez, 6 N.Y.3d at 208, 811 N.Y.S.2d 267, 844 N.E.2d 721) (some brackets added). Notwithstanding Henry's objection, the District Court adopted the Magistrate Judge's recommendation, reasoning that, although the New York Court of Appeals had recently altered New York's law of depraved indifference murder in a "material way," Henry was not entitled to relief because the alteration did not apply retroactively. Henry, 2007 WL 2406928, at *1.

Following the District Court's denial of relief, Henry moved for a COA so that this Court could review "two constitutional contentions." Aff. in Support of Pet'rs Mot. for COA, Henry v. Ricks, No. 01-cv-01361, at 1 (N.D.N.Y. Sept. 19, 2007) ("Motion for COA"). In his moving papers, Henry informed the District Court that he wished to argue that (1) pursuant to decision in Dixon v. Miller, 293 F.3d 74 (2d Cir.2002), the decisions of the New York Court of Appeals in Suarez and People v. Gonzalez, 1 N.Y.3d 464, 775 N.Y.S.2d 224, 807 N.E.2d 273 (2004), as well as other cases, must be applied in our collateral review of his conviction because they "constitut[ed] a clarification" of the law as it existed at the time of his conviction and "not a change[ ] in the law," Motion for COA at 2, and (2) even if the decisions marked a change in New York's law of depraved indifference murder, "as a matter of federal constitutional law" the change must be applied retroactively, id. at 1-2.

The District Court granted the Motion for a COA in full, Henry v. Ricks, No. 01-cv-1361, 2007 WL 3353067, at *1 (N.D.N.Y. Nov. 9, 2007), and this appeal followed.

DISCUSSION

We review de novo a district court's denial of a petition for a writ of habeas corpus. See, e.g., Anderson v. Miller, 346 F.3d 315, 324 (2d Cir.2003). Where a claim for post-conviction relief has been adjudicated on the merits in state court, we may grant habeas relief only if "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 Court of the United States; or (2) resulted in a decision 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).

Under the Due Process Clause of the Fifth and Fourteenth Amendments, no conviction may be sustained "except upon proof beyond reasonable doubt of every fact necessary to constitute the crime ... charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A habeas petitioner "is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Einaugler v. Supreme Court of New York, 109 F.3d 836, 839 (2d Cir.1997) (quoting Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (internal quotation marks omitted).

A.

When evaluating the sufficiency of the evidence adduced at a state court criminal proceeding, we "look to state law to determine the elements" of the relevant crime. Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 811 (2d Cir.2000); see also Dixon, 293 F.3d at 79 ("The state court's interpretation of the proof required must be applied on collateral review to prevent a violation of the Due Process Clause of the Fourteenth Amendment...."). Pursuant to our decision in Dixon, which, for purposes relevant to this appeal, simply applied the Supreme Court's holding in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001)—"[w]here a state's highest court for the first time interprets a criminal statute to require proof of a particular element and that interpretation does not create a new law but merely clarifies what the law was at the time of a defendant's conviction"—we apply the new interpretation of the criminal statute on collateral review of the conviction. Dixon, 293 F.3d at 79 (citing Fiore, 531 U.S. at 228, 121 S.Ct. 712).

It is undisputed that a recent line of opinions by the New York Court of Appeals, beginning with Gonzalez, affected our understanding of N.Y. Penal Law § 125.25(2), which describes the offense of depraved indifference murder under New York law. See Policano v. Herbert, 7 N.Y.3d 588, 600-01, 825 N.Y.S.2d 678, 859 N.E.2d 484 (2006) (noting that Gonzalez and subsequent cases, including People v. Payne, 3 N.Y.3d 266, 272, 786 N.Y.S.2d 116, 819 N.E.2d 634 (2004), Suarez, 6 N.Y.3d at 212, 811 N.Y.S.2d 267, 844 N.E.2d 721, and People v. Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163 (2006), have "recast" the law of depraved indifference murder). In these cases, the New York Court of Appeals explained that, contrary to prior interpretations of N.Y. Penal Law § 125.25(2), New York law does not permit a jury to convict a defendant of depraved indifference murder where the evidence demonstrates the defendant's intent to kill the victim. See Gonzalez, 1 N.Y.3d at 468, 775 N.Y.S.2d 224, 807 N.E.2d 273 ("Depraved indifference murder ... involves a killing in which the defendant does not have a conscious objective to cause death but instead is recklessly indifferent, depravedly so, to whether death occurs.").

Henry argues that he is entitled to application of the rule articulated in Gonzalez because, according to Henry, that decision and subsequent decisions of the New York Court of Appeals merely "clarified" New York law as it existed at the time of his conviction. Appellant's Br. 11. Far from asserting actual innocence or a lack of intent to kill his victim,...