Jones v. Keane

Decision Date13 May 2003
Docket NumberNo. 02-2382.,02-2382.
Citation329 F.3d 290
PartiesBrian JONES, Petitioner-Appellee, v. John KEANE, Superintendent, Woodbourne Correctional Facility, Respondent-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Andrew R. Kass, Assistant District Attorney (Richard A. Brown, District Attorney of Queens County, John M. Castellano, Assistant District Attorney, of counsel and on the brief), for Francis D. Phillips, II, District Attorney of Orange County, Goshen, NY, for Respondent-Appellant.

Robert N. Isseks (Alex Smith, on the brief), Middletown, NY, for Petitioner-Appellee.

Before: OAKES, KEARSE, and B.D. PARKER, Circuit Judges.

B.D. PARKER, Jr., Circuit Judge.

Respondent-appellant John P. Keane, superintendent of the Woodbourne Correctional Facility, appeals the grant of Brian Jones's petition for a writ of habeas corpus by the United States District Court for the Southern District of New York (Brieant, J.). Jones claimed, and the court agreed, that the New York second-degree murder statute, under which he was convicted, was unconstitutionally vague. See N.Y. Penal Law § 125.25(2). Although he had not raised this argument in state-court proceedings, Jones argued that the claim was nonetheless exhausted because of its close relationship with an insufficiency-of-the-evidence claim he had raised on direct appeal. Since we conclude the claim was unexhausted, we reverse.


Jones was convicted by a jury in County Court, Orange County, New York, of Murder in the Second Degree1 and Criminal Possession of a Weapon in the Second2 and Third Degrees3 and sentenced in December 1996, as a juvenile, to concurrent sentences of nine years to life on the murder charge, two to six years on the second-degree weapons-possession charge, and one to three years on the third-degree weapons-possession charge. The conviction stemmed from a June 1996 altercation in the City of Newburgh, involving Jones, LaToya Williams (Jones's girlfriend), and Germaine Fields. While attempting to separate the two young men, Williams fell to the ground with Fields. Jones then fired two shots, killing Fields. At trial, Jones testified that he did not intend to kill Fields but, fearing that he was armed, was animated at least in part by concerns of self defense.

Jones was charged with one count of intentional murder under N.Y. Penal Law § 125.25(1), one count of depraved indifference murder under N.Y. Penal Law § 125.25(2), and criminal possession of a weapon in the second and third degrees. The jury acquitted Jones of intentional murder, but, as noted, convicted him of second-degree ("depraved indifference") murder and on the two weapons-possession counts.

On direct appeal, Jones argued that the evidence at trial was insufficient to establish his guilt on the second-degree murder charge and that, instead, the evidence showed that his actions were justified "due to a reasonable fear for his safety." This argument was rejected by the Appellate Division, which affirmed Jones's conviction. People v. Jones, 266 A.D.2d 236, 696 N.Y.S.2d 902 (2d Dep't 1999). Leave to appeal was denied by the New York Court of Appeals. People v. Jones, 95 N.Y.2d 798, 711 N.Y.S.2d 166, 733 N.E.2d 238 (2000). Jones then applied for writ of error coram nobis, asserting that he was denied effective assistance of appellate counsel. This application was denied. People v. Jones, 288 A.D.2d 237, 732 N.Y.S.2d 361 (2d Dep't 2001). Jones also moved in the County Court under N.Y.Crim. Proc. Law § 440.10 to vacate his conviction because of ineffective assistance of trial counsel. But this motion was also denied, as was leave to appeal it.

Jones then turned to federal court, filing a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. In this petition, Jones asserted, as in state court, that the evidence was insufficient to support his murder conviction and that his trial and appellate counsel had provided ineffective representation. Jones also argued, however, that the crime of depraved indifference murder is unconstitutionally vague, owing to "confused and contradictory" efforts to interpret "depraved indifference" by the New York Court of Appeals. Hab. Pet. at 18. These efforts, Jones contended, have made depraved indifference murder indistinguishable from the crime of reckless manslaughter. This elision, according to Jones, creates the potential for unconstitutional variances in the charges prosecutors can lodge and sentences that may be imposed for essentially the same conduct.4

More specifically, Jones argues that the New York Court of Appeals erred in concluding, beginning with People v. Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704 (1983), that depraved indifference murder does not require "an `uncommonly evil and morally perverse frame of mind,'" People v. Sanchez, 98 N.Y.2d 373, 383, 748 N.Y.S.2d 312, 777 N.E.2d 204 (2002) (quoting id. at 396, 748 N.Y.S.2d 312, 777 N.E.2d 204 (Rosenblatt, J., dissenting)), and instead that "the crux" of this crime "is recklessness exaggerated by indifference to the circumstances objectively demonstrating the enormity of risk of death from the defendant's conduct." Id. at 380, 748 N.Y.S.2d 312, 777 N.E.2d 204. Jones contends that the depraved indifference murder statute is unconstitutional, as so interpreted, because it cannot be distinguished from reckless manslaughter, which occurs when a person "recklessly causes the death of another person." N.Y. Penal Law § 125.15(1).

The "failure of the [depraved indifference] statute to adequately define the more serious mens rea" creates the risk, according to Jones, "that prosecutors and juries [will] arbitrarily and erratically determine which crime to prosecute or to apply." Appellee Br. at 25 (citing, among other authorities, Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ("Where the legislature fails to provide such minimal guidelines, a criminal statute may permit `a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'" (quoting Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974)))).5 While conceding that this claim had not been specifically raised in state court, Jones asserted that his vagueness claim was nonetheless exhausted because it was "interrelated" with an insufficiency-of-the-evidence claim raised on direct appeal.

The District Court granted the petition. It first concluded that the depraved indifference murder and reckless manslaughter statutes were, on their face, neither vague nor indistinguishable. But it accepted Jones's argument that attempts by the New York Court of Appeals to interpret "depraved indifference" had resulted in "a largely circular definition worthy of the committee that wrote the Internal Revenue Code" and had effectively eviscerated any meaningful distinction between depraved indifference murder and reckless manslaughter. Mem. and Order, May 22, 2002, at 8. The District Court found that the conflation of conduct covered by the two closely related crimes violated equal protection and substantive due process. It further agreed with Jones that presenting his insufficiency-of-the-evidence claim in state court sufficed to exhaust his vagueness claim, finding the two "substantially the same." Id. at 11.


We review de novo the District Court's grant of habeas corpus and we review its factual findings for clear error. Jenkins v. Artuz, 294 F.3d 284, 290 (2d Cir.2002). Although the parties raise a number of issues, we address principally the exhaustion issue since we conclude it is dispositive.

A. Vagueness and Exhaustion

With exceptions not relevant here, federal habeas relief is not available unless "the applicant has exhausted the remedies available in the courts of the State."6 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement "springs primarily from considerations of comity" between the federal and state judicial systems. Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 191 (2d Cir.1982) (en banc). By requiring exhaustion, federal courts recognize that state courts, "no less than federal courts, are bound to safeguard the federal rights of state criminal defendants." Id. Besides serving "to minimize friction between our federal and state systems of justice," Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam), the exhaustion requirement has the salutary practical effect of enhancing the familiarity of state courts with federal constitutional issues. See Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

Exhaustion requires a petitioner fairly to present the federal claim in state court. See Strogov v. Att'y Gen. of N.Y., 191 F.3d 188, 191 (2d Cir.1999). "A petitioner has `fairly presented' his claim only if he has `informed the state court of both the factual and the legal premises of the claim he asserts in federal court.'" Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir.1997) (quoting Daye, 696 F.2d at 191). The claim presented to the state court, in other words, must be the "substantial equivalent" of the claim raised in the federal habeas petition. Strogov, 191 F.3d at 191 (quoting Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)).

As noted, the District Court found that the insufficiency of the evidence claim that Jones presented in state court was the substantial equivalent of the claim of unconstitutional vagueness raised in his federal habeas petition. The court also expressed concern that presentation of the vagueness claim in state court may well have been futile. As explained by the District Court:

Petitioner argues, and this Court agrees, that in the context of this case, raising in the state court the issue of insufficiency of the evidence was sufficient to raise ("inextricably intertwined with") a challenge to the statutory criteria for...

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