Policano v. Herbert

• Decision Date: 21 June 2006
• Docket Number: Docket No. 04-5518-pr.
• Citation: 453 F.3d 79
• Parties: David POLICANO, Petitioner-Appellee, v. Victor T. HERBERT, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

453 F.3d 79

David POLICANO, Petitioner-Appellee, v. Victor T. HERBERT, Respondent-Appellant.

Docket No. 04-5518-pr.

United States Court of Appeals, Second Circuit.

Argued: July 11, 2005.

Decided: June 21, 2006.

Richard Ware Levitt, New York, NY, for Petitioner-Appellee.

Rhea A. Grob, Assistant District Attorney (Charles J. Hynes, District Attorney, Kings County, Leonard Joblove & Ann Bordley, Assistant District Attorneys, of counsel), Brooklyn, NY, for Respondent-Appellant.

ORDER

A poll on whether to rehear this case en banc was conducted among the active judges of the court upon the request of an active judge of the court. Because a majority of the court's active judges voted to deny rehearing en banc, rehearing en banc is hereby DENIED.

Judges Calabresi, Straub, Pooler, Sack, Sotomayor, Katzmann, B.D. Parker and Hall concur in the denial of rehearing en banc. Chief Judge Walker and Judges Jacobs, Cabranes, Raggi and Wesley dissent from the denial of rehearing en banc. With this order is filed a per curiam opinion concurring in the denial of rehearing en banc. Judge Raggi dissents in an opinion in which Chief Judge Walker and Judges Jacobs, Cabranes and Wesley join. Judge Wesley dissents in a separate opinion in which Judge Raggi joins.

CALABRESI, STRAUB, POOLER, SACK, SOTOMAYOR, KATZMANN, B.D. PARKER and HALL, Circuit Judges, concurring in the denial of rehearing en banc.

PER CURIAM.

A clear majority of the United States Court of Appeals for the Second Circuit seeks the guidance of the New York Court of Appeals to answer questions which are fundamentally issues of state law. The majority does not think it is appropriate to have an en banc proceeding on issues of state law where a panel has certified those issues and where resolution of those state law questions could well be outcome determinative of any remaining federal questions. The New York Court of Appeals has been a welcoming partner in the certification process and we have been grateful for its continuing counsel. See Judith S. Kaye and Kenneth I. Weissman, Interactive Judicial Federalism: Certified Questions in New York, 69 Fordham L.Rev. 373 (2000). As has always been the case, we recognize that the New York Court of Appeals should feel free to make such modifications as to the form of the questions as it deems appropriate. As the certifying panel noted: "[i]n formulating the questions as we have, we do not intend to limit the scope of the New York Court of Appeals' analysis or its response. The certified questions may be deemed expanded to cover any pertinent further issue that the New York Court of Appeals thinks it appropriate to address."

REENA RAGGI, Circuit Judge, with whom Chief Judge WALKER, Judge JACOBS, Judge CABRANES, and Judge WESLEY, join, dissenting.

On this appeal from the grant of a writ of habeas corpus to a New York State prisoner who raised a sufficiency challenge to his second degree murder conviction, see N.Y. Penal Law § 125.25, a panel of this court finds that "there is no doubt that [Policano] intended to kill his victim," Policano v. Herbert, 430 F.3d 82, 91 (2d Cir. 2005); see also Policano v. Herbert, No. 02-1462, 2004 WL 1960203, 2004 U.S. Dist. LEXIS 17785 (E.D.N.Y. Sept. 7, 2004). This conclusion is not, as one might expect, the basis for reversing the habeas award but, rather, for affirming it. Because the panel deems the evidence that Policano intended to kill his victim incontrovertible, it concludes that the evidence is necessarily insufficient to permit a reasonable jury to find that he killed with depraved indifference. See Policano v. Herbert, 430 F.3d at 88-91; see also N.Y. Penal Law § 125.25(1) & (2) (identifying intentional and depraved indifference theories of second degree murder). Put another way, Policano's murder conviction is vacated not because the evidence of his culpability is too weak, but because it is too strong. The net result is that Policano likely "gets away with murder" because New York's statutory prohibition on successive prosecutions, see N.Y.Crim. Proc. Law § 40.20, which is stricter than constitutional double jeopardy, precludes his retrial for intentional murder even though the jury in his case (following court instructions) never returned a verdict on that charge.¹

Although the Policano panel itself characterizes this result as "disturbing," it concludes that its sufficiency ruling is mandated by established New York State law. Policano v. Herbert, 430 F.3d at 92-93. This was not, however, the conclusion reached by New York courts when they affirmed Policano's depraved indifference conviction on direct appeal, see People v. Policano, 277 A.D.2d 331, 715 N.Y.S.2d 880 (2d Dep't 2000),² and denied further review, see People v. Policano, 96 N.Y.2d 786, 725 N.Y.S.2d 651, 749 N.E.2d 220 (2001) (Smith, G.B., J.).³ I respectfully submit that the Policano decision, by, in effect, telling New York courts that they failed to understand the limits of their own state law, commands a seriously flawed result warranting full court review. Accordingly, I respectfully dissent from the denial of rehearing en banc. To the extent that denial is informed, at least in part, by the Policano panel's belated decision to certify certain questions of state criminal law to the New York Court of Appeals, I am of the view that no such inquiry is necessary for this court to conclude that a writ of habeas corpus was improvidently granted in this case. Nevertheless, because the panel has chosen to certify, in this opinion, I also offer some reflections that may be relevant to the Court of Appeals' consideration of the certified questions.⁴

At the outset, I briefly summarize the three reasons for en banc review that will be discussed in detail in this opinion:

First, Policano's constitutional insufficiency ruling depends on a construction of New York law that did not command a majority of the state's Court of Appeals until 2004, well after petitioner's conviction became final on March 30, 2001.

Second, Policano fails to apply deferential review, as required by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, see 28 U.S.C. § 2254(d), to the Appellate Division's ruling that the trial evidence was sufficient to permit a reasonable jury to find Policano guilty of depraved indifference murder under New York law.

Third, if the purported error in this case is viewed as a charging failure to tell the jury first (or only) to consider intentional murder, the error might well be deemed harmless in light of the panel's conclusion that there is "no doubt" that petitioner "intended to kill his victim." Policano v. Herbert, 430 F.3d at 91.

In urging en banc review, I understand that this court rarely convenes as a whole to rectify perceived errors in a single case. It is, however, exceptionally important that it do so here. See Fed. R.App. P. 35. The Policano decision, if left to stand, may well unleash a rash of habeas challenges by other convicted New York State murderers raising the same ironic sufficiency argument: that, under state law, they are too guilty of murder (because they really intended to kill their victims) to be guilty of murder (on a theory of depraved indifference).⁵ For a federal habeas court to embrace this argument in cases in which the state courts themselves identified no such error at the time the convictions became final, and on that ground to release obviously dangerous individuals, propagates public disrespect for both the courts and the law. As Judge Friendly observed, "[t]he proverbial man from Mars would surely think we must consider our system of criminal justice terribly bad if we are willing to tolerate such efforts at undoing judgments of conviction." Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L.Rev. 142, 145 (1970). Such circumstances clearly warrant our careful consideration en banc.

I. Background

Although the facts relevant to the crime of conviction are set forth in the panel opinion, see Policano v. Herbert, 430 F.3d at 84-86, a brief review is appropriate.⁶

At approximately 8:45 p.m. on January 27, 1997, petitioner David Policano approached Terry Phillips at a Brooklyn bus stop and shot him dead. A few days earlier, on January 21, 1997, the two men had purportedly engaged in a quarrel, during which Phillips struck Policano in the face with a metal pipe. Although Policano initially declined police intervention, stating that he would "take care of" matters himself, he subsequently filed a formal police complaint against Phillips. Id. at 85 (quoting Trial Tr. 240, 250). Sometime in the forty-five minutes before the January 27, 1997 shooting, Policano ingested crack cocaine. At the time of the shooting, a friend of the victim saw Policano approach the bus stop where Phillips was standing and point a gun in Phillips's direction. The witness heard, but did not see, shots fired. A forensics witness testified that Phillips sustained four gunshot wounds two to his head, one to his neck, and one to his right thigh, all fired at close range. The witness stated that the first three shots appeared to have been fired while Phillips was standing; the shot to the thigh appeared to have been fired after Phillips was on the ground.

Over Policano's objection, the jury was charged on both the specific intent and depraved indifference theories of second degree murder. See N.Y. Penal Law § 125.25(1) & (2). Told not to consider specific intent if it found depraved indifference proved, the jury found Policano guilty on the latter theory and returned no verdict on specific intent. See Policano v. Herbert, 430 F.3d at 85-86.

II. The Reasons Warranting En Banc Review in this Case

A. At the Time Policano's Conviction Became Final, New York Law Regarding Depraved Indifference Murder Did Not Support a Habeas Award

1. Determining the State Law Relevant to a Constitutional Sufficiency...