Spears v. Greiner

• Decision Date: 02 August 2006
• Docket Number: Docket No. 05-2297-pr.
• Citation: 459 F.3d 200
• Parties: Cory SPEARS, Petitioner-Appellant, v. Charles GREINER, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

459 F.3d 200

Cory SPEARS, Petitioner-Appellant, v. Charles GREINER, Respondent-Appellee.

Docket No. 05-2297-pr.

United States Court of Appeals, Second Circuit.

Argued: June 23, 2006.

Decided: August 2, 2006.

Tina Schneider, Portland, Maine, for Petitioner-Appellant.

Victor Barall, Assistant District Attorney, Kings County, New York (Charles J. Hynes, District Attorney, and Leonard Joblove and Joseph Huttler, Assistant District Attorneys, on the brief) for Respondent-Appellee.

Before JACOBS, POOLER, Circuit Judges; KOELTL, District Judge.¹

KOELTL, District Judge.

This case asks us to clarify when a charge requesting a deadlocked jury in a criminal case to continue deliberating requires specific cautionary language instructing jurors not to abandon their conscientiously held beliefs.

The petitioner appeals from the judgment of the United States District Court for the Eastern District of New York (Weinstein, J.), entered March 16, 2005, denying his petition for a writ of habeas corpus. The petitioner challenges his conviction after a jury trial in the New York State Supreme Court, Kings County, on the grounds that the petitioner's Fifth and Sixth Amendment rights were violated by the trial court's modified Allen charge to the deadlocked jury.

We affirm.

BACKGROUND

The petitioner-appellant, Corey Spears, was convicted of robbery in the first degree following a jury trial in the New York State Supreme Court, Kings County. Spears was charged with participating in an armed robbery along with his co-defendant, Lamar Suber. During the first day of deliberations, the jury sent out two notes requesting review of certain evidence and clarification of the jury instructions. Later on the first day, the jury sent out three additional notes. The trial judge responded to the first two notes by giving additional instructions and having additional testimony read to the jury. The trial judge then read the final note aloud, which stated: "We have a hung jury on both defendants and don't think anything will help change our decision." The trial judge responded to that note as follows:

The answer to that one is that you have just barely begun your deliberations. We spent a good deal of time in selecting the jury and hearing the testimony. Please give it your full attention. I have a very strong feeling that you should be able to reach a verdict.

After an unrecorded side-bar conference, the trial judge continued:

Members of the jury, there has been an objection by counsel to my statement that a lot of time and money has been expended on this case. That shouldn't be part of your consideration. What you should consider is what the facts are with the idea, with an attempt to reach a verdict if that be possible. Based on the very few hours that you have deliberated, I tell you that it's far too premature at this point to send such a note. Please continue your deliberations with a view toward arriving at a verdict if that's possible.

Counsel for the defense had no further objection to this instruction. The jury then returned another note concerning the evidence, and after "some time" had elapsed, the judge sent the jury to dinner and to a hotel. The following morning, it became apparent that one of the jurors would have to leave the deliberations with a court officer to check on a medical emergency in her family, and might not be able to return to the deliberations. The judge then called in the jury at 11:00 a.m. to ask if they had reached a verdict as to any defendant on any count. The jury indicated that it had reached a verdict as to Spears, finding him guilty of robbery in the first degree, but had not reached a verdict as to his co-defendant, Suber. The trial court accepted the partial verdict, and subsequently declared a mistrial as to Suber.

Spears then unsuccessfully appealed to the New York State Supreme Court, Appellate Division, arguing that the trial court had improperly inquired into whether the jury had reached a verdict, and then improperly accepted a partial verdict. In the midst of this argument in his brief, Spears argued that the "prompting of the jury to return a verdict" was made "even more problematic by the court's earlier charge when the jury sent out [a] note saying it was deadlocked as to both defendants." By memorandum decision and order dated October 23, 2000, the Appellate Division unanimously affirmed Spears's conviction, rejecting the claim that the trial court erred in accepting a partial verdict. People v. Spears, 276 A.D.2d 725, 715 N.Y.S.2d 640 (2000). The Appellate Division did not refer to the argument regarding the supplemental charge. The petitioner's application for permission to appeal to the New York Court of Appeals was denied. People v. Spears, 745 N.E.2d 1029 (N.Y.2001).

Following the exhaustion of his direct appeal in the New York State courts, Spears filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York.² Among other claims, Spears argued that the trial court's instructions to the jury after it had indicated that they were deadlocked constituted an impermissible Allen charge. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The district court (Weinstein, J.) denied the petition, but granted a certificate of appealability on Spears's Allen 20 charge claim. Spears v. Spitzer, 2005 WL 588238, at *21 (E.D.N.Y. Mar. 14, 2005). This appeal followed.

DISCUSSION

I. Standard of Review

We review a district court's denial of a petition for a writ of habeas corpus de novo. See Shabazz v. Artuz, 336 F.3d 154, 160 (2d Cir.2003). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2254, the standard governing federal habeas review depends upon whether the petitioner's claims have previously been "adjudicated on the merits" by a state court. 28 U.S.C. § 2254(d). This Court has held that a state court "adjudicates" a petitioner's federal constitutional claims "on the merits" when it "states that it is disposing of the claims on the merits and reduces its disposition to judgment." Shabazz, 336 F.3d at 160; see also Jimenez v. Walker, ___ F.3d ___, 2006 WL 2129338, at *8 (2d Cir. July 31, 2006); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.2002). To determine whether a state court disposition is "on the merits," this Court examines (1) the state court's opinion, (2) whether the state court was aware of a procedural bar, and (3) the practice of state courts in similar circumstances. See Jimenez, 2006 WL 2129338, at *8.

If the claim was "adjudicated on the merits" in state court, a federal habeas court may grant the writ only if 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 that was 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). If a federal claim has not been adjudicated on the merits, AEDPA deference is not required, and conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo. DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir.2005).

In this case, the Appellate Division's opinion makes no mention of the Allen charge claim at issue here. Spears, 715 N.Y.S.2d at 640. Although the petitioner raised an issue with respect to the trial judge's supplemental charge in conjunction with his argument before the Appellate Division regarding the partial verdict, there is no showing that the Appellate Division adjudicated this issue on its merits. The argument on the supplemental charge was contained in a single paragraph that was part of a more extensive argument on taking the partial verdict. The Appellate Division, after disposing of the partial verdict argument, gave no indication that it had considered or disposed of any other argument.

It is unnecessary in this case to decide whether to afford AEDPA deference to the decision of the Appellate Division because, even applying a de novo review standard, we find that the petitioner has failed to establish any violation of federal law. Cf. Wiggins v. Smith, 539 U.S. 510, 530-31, 535-36, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (applying de novo standard to part of a federal claim not reached by the state court); Boyette v. Lefevre, 246 F.3d 76, 91 (2d Cir.2001)(same).

II. Appropriateness of the Modified Allen Charge

The parties and the district court characterize the trial judge's instructions to the deadlocked jury as a modified Allen charge. While we accept the parties' and the district court's characterization of the instructions as a modified Allen charge, other courts have held that a "judge's simple request that the jury continue deliberating, especially when unaware of the composition of the jury's nascent verdict" can not be "properly considered an Allen charge."³ United States v. Prosperi, 201 F.3d 1335, 1341 (11th Cir.2000). In Allen, the Supreme Court approved of supplemental instructions given to a deadlocked jury urging them to continue deliberating and for the jurors in the minority to listen to the majority's arguments and ask themselves whether their own views were reasonable under the circumstances.⁴ 164 U.S. at 501, 17 S.Ct. 154. The instructions in Allen included statements directing that "the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows," and that it was the jury's duty "to decide the case if they could conscientiously do so." Id. These statements served to remind jurors in the minority that a verdict was not required, and that no juror should surrender the juror's conscientiously held views for the sake of rendering a verdict.

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