Hubert v. Miller

• Decision Date: 16 February 2023
• Docket Number: 22-cv-4565 (BMC)
• Parties: DELANO HUBERT, Petitioner, v. SUPERINTENDENT MARK MILLER, Respondent.
• Court: U.S. District Court — Eastern District of New York

DELANO HUBERT, Petitioner,
v.
SUPERINTENDENT MARK MILLER, Respondent.

No. 22-cv-4565 (BMC)

United States District Court, E.D. New York

February 16, 2023

MEMORANDUM DECISION AND ORDER

Brian M. Cogan, U.S.D.J.

Petitioner seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 from his conviction before a jury for second degree murder and second degree criminal possession of a weapon. The facts will be set forth below as necessary to address each of petitioner's ten points of error, but to summarize, petitioner, after following the victim, Cesar Sanchez, on a bicycle, confronted him at a housing project where Sanchez lived. When Sanchez didn't back down, petitioner got off the bicycle and shot Sanchez in the head, killing him. The jury rejected petitioner's claim of selfdefense.

In the instant habeas corpus proceeding, most of petitioner's points of error are state law issues which are not subject to review on federal habeas corpus. None of them fall within the narrow standard for review under the Antiterrorism and Effective Death Penalty Act. The petition is therefore denied.^[1]

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I. Resubmission of the Indictment

This argument arises from the fact that the District Attorney had to re-present the case to a grand jury twice due to technical defects. The first defect was that when the District Attorney initially presented the case, he did not introduce proof that Sanchez had died (just that he had been shot). The trial court therefore reduced the murder charge to attempted murder with leave to re-present to the grand jury. The District Attorney did that and again obtained an indictment on the same charges. Then, the District Attorney realized that he had not instructed the grand jury that there is a “home-or-place-of-business” exception to second degree criminal possession of a weapon under New York law. He advised the trial court that he was going back to the grand jury for another re-presentment to include that instruction, and the court did not object. He represented the case again and again obtained an indictment for the same charges.

Petitioner raises two alleged problems with the re-presentation process. First, under N.Y. C.P.L. § 210.20(6)(b), a re-presentation must occur within 30 days. The District Attorney began re-presenting the case to the grand jury within the 30-day period, but because petitioner delayed his determination of whether he wanted to testify before the grand jury, the prosecutor did not complete the re-presentation until 9 days after the 30-day period had run. Second, under N.Y. C.P.L. § 190.75(3), if the court dismisses an indictment as defective, the District Attorney may not again resubmit the case without a court order. Here, the District Attorney re-presented the case a second time by merely advising the court that he was going to do so, rather than having the court enter an order authorizing him to do so.

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The Appellate Division rejected both of these arguments on the merits: “Contrary to the defendant's contention, the People's resubmission of the case to the grand jury on February 3, 2015, was timely. Moreover, the People were not required to seek leave of court before resubmitting the case to the grand jury on October 3, 2016.” People v. Hubert, 194 A.D.3d 959, 960, 147 N.Y.S.3d 137 (citation omitted), leave to appeal denied, 37 N.Y.3d 992, 152 N.Y.S.3d 409 (2021).

There are three reasons why this claim is insufficient to warrant habeas corpus relief.

First, federal habeas corpus is not available to address alleged deficiencies in following state statutes. Federal courts review only questions of federal law, not state law. Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a perceived error of state law.”). In this case, the Appellate Division construed the New York state statutes to permit re-presentation when the prosecution begins its re-presentment within the 30-day period, even if it does not complete the re-presentation within that period, and without a second grant of leave from the court when the underlying indictment has not been dismissed, the court has already granted leave, and the two indictments are consolidated (which is what happened here). It is not for this Court to tell the New York appellate courts that they are misconstruing New York statutes.

Second, petitioner's represented brief in the Appellate Division cited, as part of a string cite, “U.S. Const., Amends. V, XIV.” This is de rigueur for the state public defender (which appeared for petitioner on his counseled brief). However, petitioner made no argument as to how the trial court's construction of the statutes violated due process, nor can this Court conceive of one. It was presented strictly as an issue of statutory construction.

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But even assuming there was a federal due process issue for this Court to review rather than just a state law issue, petitioner does not come close to satisfying the standard for habeas corpus relief. AEDPA permits relief only if a state court's legal conclusion is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The decision of a state court is “contrary” to clearly established federal law within the meaning of § 2254(d)(1) if it is “diametrically different” from, “opposite in character or nature” to, or “mutually opposed” to the relevant Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405 (2000). A decision involves “an unreasonable application” of clearly established federal law if the state court applies federal law to the facts of the case “in an objectively unreasonable manner.” Brown v. Payton, 544 U.S. 133, 141 (2005).

The Supreme Court has made clear that the AEDPA standard of review is extremely narrow and is intended only as “a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Ryan v. Gonzales, 568 U.S. 57, 75 (2013) (citation and internal quotation marks omitted). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Since Harrington, the Supreme Court has repeatedly admonished lower courts for not affording sufficient deference to state court determinations of constitutional issues. See, e.g., White v. Wheeler, 577 U.S. 73, 76-77 (2015) (“This Court, time and again, has instructed that AEDPA, by setting forth necessary predicates before state-court judgments may be set aside, ‘erects a

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formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.'” (quoting Burt v. Titlow, 571 U.S. 12, 19 (2013))).

There is no Supreme Court case holding or even suggesting that a state-required period of 30 days for re-presentation means that the prosecution must complete, rather than initiate, representation within that period, as a matter of federal constitutional law. Nor is there any Supreme Court case addressing the issue of whether a prosecutor must obtain leave of court when re-presenting the case after he has already advised the court that he was going to do so. Thus, the Appellate Division's ruling is neither contrary to, nor an unreasonable application of, any Supreme Court authority.

Third, errors in the presentation of the case before a grand jury are harmless as a matter of law when the jury convicts a defendant under the indictment. As the Second Circuit has held, habeas corpus review of such errors is not available because “any error in the grand jury proceeding” was rendered “harmless beyond reasonable doubt” by the petit jury's guilty verdict. Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (quoting U.S. v. Mechanik, 475 U.S. 66, 70 (1986)); accord Davis v. Mantello, 42 Fed.Appx. 488, 490 (2d Cir. 2002).

II. Insufficiency of Evidence

Under New York law, to prove second degree murder, the prosecutor must disprove the defense of “justification” beyond a reasonable doubt. See N.Y. Penal L. § 25; People v. Umali, 10 N.Y.3d 417, 421, 859 N.Y.S.2d 104, 106 (2008). On direct appeal, petitioner contended that the District Attorney had not met this burden or, alternatively, the jury's verdict was against the weight of the evidence.

Petitioner referred to the following evidence: (1) petitioner testified that Sanchez had threatened to “blast” him, pulled out a gun, and fired at petitioner; (2) multiple witnesses heard

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between two and four shots, but petitioner's gun only fired one shot; (3) two shell casings were removed from the scene, one of which had not been discharged from petitioner's gun; (4) there were inconsistencies between the sole eye witness's testimony and other evidence; (5) none of the other witnesses who arrived at the scene after they heard the shots could say who fired first; (6) circumstantial evidence suggested that a friend of Sanchez's (Lewis), who had a criminal record, might have removed Sanchez's gun when he came to the scene soon after Sanchez was shot; and (7) another witness who heard a single shot was not credible because of his criminal history.

In response, the District Attorney pointed to the following evidence: (1) two witnesses testified that petitioner shot Sanchez, and Sanchez did not display, threaten to use, or even possess a gun; (2) consistent with the autopsy report, the entry of the bullet through the left side of Sanchez's head and out the right side of his head showed that Sanchez was not even looking at petitioner when he was shot; (3) other witnesses testified that Sanchez's only significant gesture was to put a plastic bag on the ground; (4) there was direct evidence that petitioner had pointed...