Shaut v. Bennet

Decision Date29 August 2003
Docket NumberNo. 01-CV-6315L(FE).,01-CV-6315L(FE).
Citation289 F.Supp.2d 354
PartiesBrian S. SHAUT, Petitioner, v. Floyd BENNET, Superintendent, Elmira Correctional Facility, Respondent.
CourtU.S. District Court — Western District of New York
289 F.Supp.2d 354
Brian S. SHAUT, Petitioner,
v.
Floyd BENNET, Superintendent, Elmira Correctional Facility, Respondent.
No. 01-CV-6315L(FE).
United States District Court, W.D. New York.
August 29, 2003.

Page 355

COPYRIGHT MATERIAL OMITTED

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Brian S. Shaut, Elmira, NY, Pro se.

Brooks T. Baker, Steuben County Attorney, Bath, NY, Charles D. Steinman, New York State Attorney General, Rochester, NY, for Respondent.

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DECISION AND ORDER

LARIMER, District Judge.


INTRODUCTION

Petitioner Brian S. Shaut ("Shaut") filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Steuben County Court of first degree manslaughter and third degree criminal possession of a weapon. For the reasons set forth below, Shaut's § 2254 petition is dismissed.

FACTUAL BACKGROUND

Shaut fatally stabbed Irving Farrow ("Farrow") on August 12, 1996, during a struggle which occurred at the trailer of Stacey Overhiser ("Overhiser"), Shaut's estranged girlfriend. The People claimed that it was intentional murder and indicted Shaut on two counts of murder (Penal Law ("P.L.") § 125.25(1), (3)), two counts of burglary (P.L. § 140.30); and one count of criminal possession of a weapon (P.L. § 265.02). Shaut asserted that he acted in self-defense, and that Farrow, although unarmed, was the initial aggressor.

Shaut was tried before a jury in Steuben County Court (Bradstreet, J.) on August 12 to August 18, 1997. The evidence showed that Shaut and Overhiser had been living together at the trailer where Farrow was stabbed, but that Shaut had moved out on July 3, 1996 and taken an apartment nearby. There was testimony that Shaut continued to support Overhiser financially even after they stopped living together. The landlord testified that Shaut was the individual to whom she initially leased the trailer, and that she considered Shaut to be the primary tenant. Shaut claims that he and Overhiser continued an intimate relationship between July 3, 1996 and the date of the stabbing, although Overhiser denied it at trial.

Defense counsel sought to build a justification defense based on Shaut's voluntary statements to the state police immediately following the incident. Shaut told the police that he spent the evening of August 12, 1996 at a local tavern stewing over the situation with Overhiser. Shaut was concerned that Overhiser was socializing with an unsavory crowd of people and not caring properly for their two year-old son, Wyatt.

Eventually, Shaut's curiosity got the better of him. Arming himself with a buck knife, he went to stake out the trailer where Overhiser was living. Once there, he saw Farrow, a black man, inside the trailer with Overhiser. Shaut claimed that since nothing appeared amiss, he decided to leave. Just then, Trina Velasquez ("Velasquez"), a friend of Overhiser's, drove up in her car with several other people.

Shaut stated that Velasquez was vomiting and crying and that the people accompanying her "were yelling and carrying on." Velasquez corroborated this testimony, stating that Farrow, who was her boyfriend, left the trailer and began beating her. Velasquez realized Shaut was outside when she heard Shaut tell Farrow to stop what he was doing.

At that point, Shaut claims that he "just lost it." Shaut told the police that he unsheathed the knife, charged inside the trailer, and told Overhiser that he was going to take Wyatt. According to Overhiser, however, Shaut cornered her in the bathroom with the knife and demanded "Where's the [n-word], bitch?" Trial Transcript ("Tr.") at 225. Upon hearing Farrow in the living room "breaking up things," Shaut decided to go "scare him with the knife."

Shaut claimed that Farrow rushed him and "took [him] down" and that the "knife went into him into his stomach and chest." Because Farrow "didn't stop," Shaut "held

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on to him and stabbed him in the back twice and he stopped fighting[.]" See Tr. at 369-73. Overhiser, who witnessed part of the struggle before running to get help, testified that Farrow was on top of Shaut. Overhiser did not see a weapon in Farrow's hands. There was no testimony that Farrow in fact was armed.

The defense introduced into evidence Shaut's statement to the state police, whom he flagged down for help after the stabbing, as well as notes from a state trooper's interview with the Shaut. Shaut told the police that he did not want to hurt anybody that night, that he had brought the knife because Overhiser allegedly had threatened to have him shot if he tried to take his son, and that Farrow had attacked him first.

The medical evidence established that Farrow was stabbed eight times in the chest, back, and face. Farrow also bore cuts on the palms of his hands. The medical examiner and the defense's expert witnesses both opined that the placement of the wounds indicated that a struggle occurred between the two men. Neither could say definitively who the initial aggressor was.

At the close of the proofs, the trial court granted defense counsel's application to dismiss the burglary and felony murder charges. The court determined that Shaut had the legal right to enter the trailer on August 12, 1996 and therefore a burglary charge could not stand against him. Tr. at 443. Later, the court clarified its ruling, noting that it did not find that the trailer was Shaut's home. Id. at 455.

The jury returned a verdict convicting Shaut of one count of first degree manslaughter and one count of criminal possession of a weapon. He was sentenced on November 24, 1997 to a term of 12 ½ to 25 years on the manslaughter charge and 2 1/3 to 7 years on the weapons charge, those sentences to be served concurrently.

PROCEDURAL HISTORY

Through new counsel, Shaut appealed to the Appellate Division, Fourth Department which unanimously affirmed his conviction in a memorandum decision entered May 7, 1999. People v. Shaut, 261 A.D.2d 960, 690 N.Y.S.2d 372 (4th Dept.1999). The Court of Appeals denied leave to appeal on September 10, 1999. People v. Shaut, 93 N.Y.2d 1045, 697 N.Y.S.2d 877, 720 N.E.2d 97 (1999).

Shaut challenged his conviction in a collateral motion pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 alleging that his trial counsel was constitutionally ineffective. Judge Bradstreet summarily denied the motion in an order entered June 23, 1999. Shaut did not seek leave to appeal to the Fourth Department regarding the denial of that motion. Shaut filed a second C.P.L. § 440.10 motion alleging numerous grounds which Judge Bradstreet similarly denied without comment in an order entered February 29, 2000. The Fourth Department did not grant Shaut permission to appeal the denial of the second C.P.L. § 440.10 motion.

Shaut's federal habeas petition raises the following grounds for relief: (1) the trial court failed to order a hearing sua sponte on defendant's mental capacity; (2) newly discovered evidence proved that a prosecution witness perjured herself; (3) the prosecution failed to provide certain Brady/Rosario materials; (4) he did not receive the effective assistance of trial counsel; (5) the trial court's charge on intent improperly shifted the burden of proof; (6) the Appellate Division improperly denied leave to appeal denial of his C.P.L. § 440.10 motions; (7) the trial court failed to instruct the jury not to consider

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the dismissed burglary and felony murder charges; (8) the trial court failed to charge certain lesser included offenses; (9) the trial court erred in giving a voluntariness charge concerning Shaut's statements to the police where neither the prosecution nor the defense requested such a charge; and (10) the prosecutor committed misconduct.

DISCUSSION

Exhaustion

Respondent raises the failure to exhaust with regard to Shaut's claim that the trial court erroneously issued a Sandstrom instruction on the element of intent which impermissibly shifted the burden of proof. Shaut raised this claim as one of the predicates for his ineffective assistance claim in his second C.P.L. § 440.10 motion, claiming that his attorney was deficient in failing to object to the Sandstrom charge. He did not raise it as an independent claim.

In order to have fairly presented the claim to the state courts, if not in an explicit argument, Shaut must have provided both the factual and legal premises of his claim. If the federal habeas court could rule on a claim "whose fundamental legal basis was substantially different from that asserted in state court," the "chief purposes of the exhaustion doctrine would be frustrated." Daye v. Attorney General of New York, 696 F.2d 186, 191-92 (2d Cir.1982).

Here, the state court did not make any factual or legal findings regarding Shaut's ineffectiveness claim premised on his attorney's failure to object to the alleged Sandstrom instruction, and merely denied the claim in a summary order. The absence of any factual or legal findings in the order denying Shaut's C.P.L. § 440.10 motion makes it difficult to determine whether the "fundamental legal basis" of the Sandstrom claim was presented to the state court. However, it seems to this Court that in deciding the failure-to-object claim, the trial judge necessarily would have examined the wording of the instruction in order to determine whether it was erroneous; if the language of the charge in fact was proper, then Shaut's attorney's failure to except to it could not be deficient, nor could it have caused him prejudice. Thus, the "fundamental legal basis" of the present Sandstrom claim, that is, whether the trial court's jury instruction improperly shifted the burden of proof on intent, was presented to the state court below. Consequently, I find that Shaut has satisfied the exhaustion requirement as to this claim and it may be considered on habeas review.

With regard to Shaut's seventh claim concerning the trial court's alleged failure to instruct the jury not to consider the dismissed...

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