Sweet v. Bennett

• Decision Date: 19 December 2003
• Docket Number: Docket No. 02-2055.
• Citation: 353 F.3d 135
• Parties: David SWEET, Petitioner-Appellant, v. Floyd BENNETT, Superintendent of Elmira Correctional Institution, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

353 F.3d 135

David SWEET, Petitioner-Appellant, v. Floyd BENNETT, Superintendent of Elmira Correctional Institution, Respondent-Appellee.

Docket No. 02-2055.

United States Court of Appeals, Second Circuit.

Argued: June 21, 2002.

Decided: December 19, 2003.

Alan F. Blakley, Blakley & Velk, Missoula, MT, for Appellant.

Sylvia Wade Josh, Assistant Attorney General, Attorney General's Office, State of New York, Rochester, NY, for Appellee.

Before: WALKER, Chief Judge, WINTER and F.I. PARKER,^* Circuit Judges.

Chief Judge WALKER concurs in a separate opinion.

F.I. PARKER, Circuit Judge.^**.

Petitioner-appellant David Sweet appeals from the amended judgment of the United States District Court for the Western District of New York (Jonathan W. Feldman, Magistrate Judge)¹ entered on January 15, 2002, denying his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Sweet's petition was based, among other things, on a claim that he received ineffective assistance of counsel because his trial counsel failed to object when: (1) the trial court's instructions to the jury charged Sweet with second degree murder, N.Y. Penal Law § 125.25[4], and first degree manslaughter, N.Y. Penal Law § 125.20[4], conjunctively rather than alternatively; and (2) Sweet was subsequently convicted of both counts by the jury.² The district court denied Sweet's petition because it concluded that, even though Sweet's trial counsel's failure to preserve the inconsistent verdicts claim pursuant to N.Y.Crim. Proc. Law § 300.30[5] "appears to [have been] a serious blunder," based on the state of New York law at the time of the trial, it was not objectively unreasonable for the Appellate Division to reject Sweet's ineffective assistance of counsel claim in light of the New York case law in effect at the time of the Appellate Division's decision.

Although we disagree with the approach the district court took to reach this result, for the reasons set forth herein we agree with the district court's ultimate conclusion that Sweet is not entitled to habeas relief. Accordingly, we affirm the judgment of the district court.

I. BACKGROUND

Sweet's incarceration stems from the tragic death of three-year-old Nina Fiser. Sweet was engaged to Nina's mother, Tammy Fiser, and the three of them lived together in Farmington, New York. Nina was in the sole care and custody of Sweet when she went into cardiac and pulmonary arrest on the afternoon of April 4, 1993. Sweet called 911, and Nina was taken to a nearby hospital. However, shortly after her arrival at the hospital Nina was pronounced dead. The medical examiner later testified that Nina's fatal injuries were consistent with "very violent blunt force" to her abdomen. Specifically, the autopsy revealed that Nina's liver and pancreas had been torn in half, and the artery that supplies blood to the stomach, spleen, and liver was "completely severed." Nina's body evidenced numerous bruises of varying age.

On June 28, 1994, the Ontario County Grand Jury returned an indictment that charged Sweet with, among other things, second degree murder, N.Y. Penal Law § 125.25[4],³ and first degree manslaughter, N.Y. Penal Law § 125.20[4],⁴ in connection with Nina's death. On October 27, 1995, following a nine-day jury trial, Sweet was convicted on both of these counts. Sweet's trial counsel did not object to the fact that the jury charge included both of these arguably inconsistent counts. The state, on the other hand, did express concern about the possible inconsistency of the two charges, but the trial court dismissed the state's concern. Sweet's trial counsel also failed to object on the basis of inconsistency when the jury returned its guilty verdict.

In a post-trial motion, Sweet's trial counsel moved to set aside the jury verdict on the ground that Sweet's convictions were inconsistent due to the different mental states required under his statutes of conviction. The trial judge denied Sweet's post-trial motion and sentenced him to a term of imprisonment of twenty-three years to life on the second degree murder conviction and a concurrent term of imprisonment of eight years and four months to twenty-five years on the first degree manslaughter conviction.

Represented by new counsel, Sweet appealed his conviction to the Appellate Division arguing, among other things, that the trial court incorrectly charged the jury with second degree murder and first degree manslaughter in the conjunctive instead of in the alternative, and that he was deprived of effective assistance of counsel at trial, but did not assert an ineffectiveness claim on the inconsistent verdicts question. On December 30, 1996, the Appellate Division unanimously affirmed Sweet's convictions, concluding that "the representation received by [Sweet] was meaningful," and that Sweet's inconsistent verdict claim was not preserved for review. People v. Sweet, 234 A.D.2d 957, 652 N.Y.S.2d 577 (4th Dep't 1996). On May 2, 1997, the New York State Court of Appeals denied Sweet's application for leave to appeal. People v. Sweet, 89 N.Y.2d 1101, 682 N.E.2d 996, 660 N.Y.S.2d 395 (1997).

Sweet then filed a petition in the district court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Sweet argued that he was entitled to habeas relief because he was denied his Sixth Amendment right to effective assistance of counsel due to a number of errors he claims his trial counsel made.⁵ In assessing this claim, the district court noted that "although [Sweet] alleges various errors made by trial counsel, his most compelling argument is that he was denied his right to the effective assistance of counsel when his attorney failed to timely object to the trial judge's decision to charge depraved indifference murder ... and first degree manslaughter... in the conjunctive." Sweet v. Bennett, No. 98-CV-6198, slip op. at 5 (W.D.N.Y. Jan. 14, 2002). Notably though, in his appeal to the Appellate Division Sweet had not included his trial counsel's failure to properly preserve the inconsistent charges issue as one of the alleged errors that constituted ineffective assistance of counsel. The district court recognized this fact, but nonetheless considered the merits of Sweet's arguments on this issue. See id. at 13-14 n. 7 ("Although trial counsel's failure to preserve the [inconsistent charges] issue was not specifically mentioned in Sweet's appellate brief as one of the examples of inadequate representation, the Fourth Department's decision makes clear that the appellate court was aware that the trial counsel had failed to make a timely objection to ... either the court's decision to charge the murder and manslaughter counts in the conjunctive or the alleged repugnant verdicts.").

After considering the merits of Sweet's claim, the district court denied Sweet's petition. The court noted that, based on the case law in existence at the time of Sweet's convictions, Sweet's trial counsel appeared to have committed a "serious blunder" when he failed to preserve the inconsistent verdicts claim. Nonetheless, the district court concluded that the Appellate Division's decision was not objectively unreasonable because it was unclear whether Sweet suffered prejudice from this probable blunder, given the case law in existence at the time of the Appellate Division's decision. The district court then issued a Certificate of Appealability on the issue of whether Sweet was "denied his Sixth Amendment Right to effective assistance of counsel."⁶

II. DISCUSSION

Sweet argues that the district court erred in its analysis of the inconsistent verdicts issue, and consequently erroneously denied his habeas petition. The state takes the position that there was no error in the district court's analysis of the inconsistent verdicts issue, and further suggests that Sweet has waived this claim because he failed to raise it before the state court. We review the district court's denial of Sweet's habeas petition de novo. Dixon v. Miller, 293 F.3d 74, 78 (2d Cir. 2002).

The state points out that although Sweet argued in the state courts that his trial counsel was constitutionally deficient, he did not include his trial counsel's failure to properly preserve the inconsistent charges issue as one of the bases for the ineffective assistance claim. This argument by the state is one of exhaustion, and is coupled with an issue of whether the claim would now be procedurally barred in the state courts. See 28 U.S.C. § 2254(b)(1) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant."); Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir.2001) (discussing exhaustion of remedies and procedural bars in the context of a habeas corpus petition under 28 U.S.C. § 2254). Additionally, the Supreme Court has held that when a "petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred," federal habeas courts also must deem the claim procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Therefore we turn now to the question of whether Sweet's claim would be procedurally barred in the New York courts.

A. Procedural Bar Under New York Law

New York law requires a state court to deny a motion to vacate a judgment based on a constitutional violation where the defendant unjustifiably failed to argue the constitutional violation on direct appeal despite a sufficient record. N.Y.Crim. Proc. Law § 440.10(2)(c). The purpose of this rule "is to prevent [Secti...