Tyler v. Conway

• Court: U.S. District Court — Western District of New York
• Writing for the Court: MICHAEL A. TELESCA
• Decision Date: 17 December 2010
• Docket Number: No. : 08-CV-6560(MAT),: 08-CV-6560(MAT)
• Citation: Tyler v. Conway, No. : 08-CV-6560(MAT) (W.D. N.Y. Dec 17, 2010)
• Parties: BERNARD TYLER, 04-B-12 07, Petitioner, v. JAMES CONWAY, Respondent.

BERNARD TYLER, 04-B-12 07, Petitioner,

v.JAMES CONWAY, Respondent.

No. : 08-CV-6560(MAT)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Dated: December 17, 2010

ORDER

I. Introduction

Pro se petitioner Bernard Tyler ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Niagara County Court of Murder in the Second Degree (N.Y. Penal L. § 125.25(1)), Criminal Possession of a Weapon in the Second Degree (former N.Y. Penal L. § 265.03(2)), and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal L. § 265.02(1)). Petitioner's conviction was entered on April 15, 2004, following a jury trial before Judge Sara S. Sperrazza. He is currently serving a sentence of imprisonment of twenty-five years to life.

II. Factual Background and Procedural History

Petitioner's conviction arises out of the shooting death of Jamil Jackson on the evening of July 7, 2003 in front of the Highland Deli on Highland Avenue in Niagara Falls, New York. At petitioner's trial, the prosecution presented the testimony of several Niagara Falls Police detectives and investigators, three eyewitnesses, a medical examiner, and witnesses that were in contact with petitioner the evening of the shooting. The defense called no witnesses, and petitioner did not testify. Trial Tr. 583, 585-86, 593-96, 597, 600, 607, 623, 629, 637-638, 708-09, 854-56, 884, 1018. The jury convicted petitioner of two counts of criminal possession of a weapon and one count of intentional murder, for which he was sentenced to aggregate terms of imprisonment totaling twenty-five years to life. Sentencing Tr. 1720.

Petitioner appealed his conviction to the Appellate Division, Fourth Department, on the following grounds: (1) the evidence was legally insufficient to support the conviction; (2) petitioner was entitled to the submission of the lesser-included offense of manslaughter; (3) the trial court's jury charge on the element of intent was erroneous; (4) the trial court erred in denying suppression of petitioner's oral statements to police; (5) the trial court erred in denying petitioner's request for an instruction of impeachment; and (6) ineffective assistance of trial counsel based on counsel's failure to preserve the legal sufficiency argument and failure to object to the trial court's intent charge. See Pet'r Appellate Br. 44-69. The Appellate Division unanimously affirmed the judgment of conviction. People v. Tyler, 43 A.D.3d 633 (4^th Dept. 2007), lv. denied, 9 N.Y.3d 1010 (2007).

Petitioner then filed a timely petition for writ of habeas corpus with this Court, alleging the same grounds for relief as he did on direct appeal. (Dkt. #1) The respondent submitted an answer and supporting memorandum opposing the petition, arguing, without explanation, that petitioner's ineffective assistance of counselclaim was unexhausted. (Dkt. ## 6, 7). Consequently, petitioner moved to stay his petition in order to permit him to return to state court to exhaust his remedies regarding claims of, inter alia, ineffective assistance of trial counsel. (Dkt. #11). The Court granted that motion and directed petitioner to amend his petition to include all of the claims for which he sought review by this Court by June 23, 2009. (Dkt. #15).

Petitioner then returned to state court to file a pro se motion pursuant to N.Y. Crim. Proc. L. ("C.P.L.") § 440.10 to vacate the judgment of conviction. The Niagara County Court denied the motion, and leave to appeal that decision was denied by the Fourth Department on April 6, 2010. See Decision and Order, Ind. No. 2003-310, dated 10/9/2009 (Sperazza, J.); Order of the Appellate Division, Fourth Department, KA 10-00008, dated 4/6/2010 (Gorski, A.J.). As to petitioner's claim of ineffective assistance of counsel, the 440.10 court observed, "the effectiveness of counsel based upon the trial record is an issue that was already decided by the appellate court and cannot be reviewed in a motion to vacate the conviction." See Decision and Order, No. 2003-310, dated 10/9/2009 (Sperazza, J.) at 2.

Petitioner's ineffective assistance of counsel claim has now been twice exhausted in the state courts.¹ Accordingly, the Court will vacate the stay entered on May 21, 2009, and proceed toevaluate all of the claims raised in the original petition, which were exhausted on direct appeal.²

Furthermore, the respondent did not provide the Court with petitioner's letter seeking leave to appeal the decision of the Appellate Division to the New York Court of Appeals. In light of the considerable time and resources already expended in addressing this petition by both this Court and the petitioner, this Court will presume that the six grounds of the petition were indeed presented to the highest state court since these claims were included in petitioner's brief on appeal to the Fourth Department, and therefore are fully exhausted.

For the reasons that follow, the Court finds that petitioner is not entitled to the writ, and the petition is dismissed.

III. Discussion

A. General Principles Applicable to Federal Habeas Review 1. Standard of Review

To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on anunreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).

2. Adequate and Independent State Ground Doctrine

It is a well-settled aspect of federal habeas jurisprudence that if "a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred" absent (1) a showing of cause for the default and actual prejudice attributable thereto, or (2) a showing that failure to consider the claims will result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). A state ground will create procedural default sufficient to bar habeas review if the state ground first was an "independent" basis for the decision; this means that "the last state court rendering a judgment in the case clearly and expressly state[d] that its judgment rests on a state procedural bar." In addition, the state procedural bar must be "adequate" to support the judgment-that is, it must be based on a rule that is "'firmly established and regularly followed' by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).

If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) ("a state court need not fear reaching the merits of afederal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).

B. Merits of the Petition

1. Sufficiency of the Evidence

In his first ground for habeas relief, petitioner contends that the evidence at his trial was legally insufficient to support his murder conviction because the prosecution failed to establish his intent to kill. Petition ("Pet."), Attach. 6-A.

At trial, petitioner's counsel unsuccessfully moved for dismissal on the ground that the witnesses to the shooting provided unreliable testimony. Subsequently, petitioner argued on appeal that the prosecution failed to establish the element of intent with respect to his second-degree murder conviction. The Fourth Department held that petitioner "failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction" and, "[i]n any event, defendant's contention lacks merit." People v. Tyler, 43 A.D.3d 633 (4^th Dept. 2007) (citing People v. Gray, 86 N.Y.2d 10, 19 (1995) (holding that a party seeking to challenge the sufficiency of the evidence must contemporaneously object by making a trial order of dismissal and must "specifically direct[ ]" his argument at the alleged error to preserve the claim for appellate review)).

Despite the Appellate Division's alternative ruling on the merits, see Harris, 489 U.S. at 264 n.10, the lower court explicitly relied on a state procedural rule to reject petitioner'slegal insufficiency argument. See C.P.L. § 470.05(2) (codifying New York's contemporaneous objection rule). That claim, therefore, is precluded from habeas review pursuant to the adequate and independent state ground doctrine. See, e.g., Richardson v. Greene, 497 F.3d 212, 218 (2d Cir. 2007) (recognizing New York's "contemporaneous objection" rule as an adequate and independent state ground barring habeas review); see also Fore v. Ercole, 594 F.Supp.2d 281 (E.D.N.Y. 2009) (finding appellate court's determination that petitioner failed to preserve his sufficiency challenge by making only a general motion to dismiss was an adequate and independent state ground); Walker v. Goord, 427 F.Supp.2d 272 (W.D.N.Y. 2006) (appellate court's rejection of legal insufficiency claim based on New York's contemporaneous objection rule was an adequate and independent state ground barring habeas review).

The Court may reach the merits of petitioner's claim, despite the procedural default, if he can demonstrate cause for the default and prejudice, or that failure to consider the claim will result in a miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). A fundamental miscarriage of justice means a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier,...