Opinion
1:20-cv-10491 (VSB) (KHP)
08-31-2021
DARRYL BROWN, Petitioner, v. LETITIA JAMES, in her official capacity as Attorney General of New York, ANTHONY J. ANNUCI, in his official capacity as the acting Commissioner for the New York Department of Corrections and Community Supervision, MICHAEL KIRKPATRICK, in his official capacity as Superintendent of the Clinton Correctional Facility, Respondents.
TO: THE HONORABLE VERNON S. BRODERICK, United States District Judge.
REPORT AND RECOMMENDATION
KATHARINE H. PARKER, United States Magistrate Judge
On October 3, 2016, Darryl Brown (“Petitioner”) was convicted of manslaughter in the first degree and sentenced to 18 years in prison. (ECF No. 2-1 at 29.) On appeal, the Appellate Division, First Department, vacated the conviction finding that the jury instructions at trial should have included a self-defense justification. People v. Brown, 160 A.D.3d 39, 40 (1st Dep't 2018). The Court of Appeals later reversed the First Department's decision based on its finding that Petitioner was the initial aggressor and that, pursuant to New York Penal Law § 35.15, he was not entitled to a self-defense justification. People v. Brown, 33 N.Y.3d 316, 325 (2019) reargument denied, 33 N.Y.3d 1136 (2019). On December 11, 2020, Petitioner filed the instant petition for a writ of habeas corpus (the “Petition”) pursuant to 28 U.S.C. § 2254(d)(1) & (2). (ECF No. 1.) For the reasons set forth below, I respectfully recommend that the Petition be DENIED.
Factual Background
At around noon on March 20, 2014, Petitioner, a Rikers Island corrections officer, returned home to his apartment building in the Bronx where he shared an apartment with his pregnant daughter, Myesha, and infant grandson. An argument ensued in the apartment building between Petitioner and his daughter's boyfriend and father of her child, Mr. Vonde Cabbagestalk. The argument escalated, culminating in Petitioner shooting Cabbagestalk with his service weapon. Cabbagestalk was killed by the gunshot. There were three witnesses to the incident that testified at Petitioner's trial.
The first witness, Ms. Flores, a social worker who lived in the building, heard arguing in the hallway. (ECF No. 2-3 at 99.) Looking through her apartment door's peephole, she observed Petitioner and Cabbagestalk arguing in front of the open door to Petitioner's apartment. (Id. at 99-100.) Myesha and her infant child were standing there as well. (Id.) Flores saw the two men walk off towards the lobby leaving Myesha and the baby standing in the doorway. (Id. at 103.) The two men continued to argue and curse at one another and eventually passed out of Flores' view. Flores then heard Meysha yell, “No, daddy, no!” followed by loud voices arguing and then a “loud boom.” (Id. at 106-07.) Flores testified that, immediately afterwards, Petitioner entered his apartment together with his daughter and closed the door. (Id. at 108.) Flores then left her apartment, saw Cabbagestalk lying on the lobby floor, and promptly called the police. (Id. at 109-10.)
The second witness, Ms. Sheila Thomas, a resident of the building, was returning home from grocery shopping. Brown, 160 A.D.3d at 42. Looking through the interior glass door at the building's entrance, she saw the two men (Petitioner and Cabbagestalk) arguing. Id. She observed Cabbagestalk follow Petitioner as he walked away. Id. She testified that they were both walking at a slow pace and were about six feet apart. Id. Thomas testified that Cabbagestalk had his hands extended outwards from his body, elbows bent at 90 degrees, with his palms facing upwards as if trying to reason with Petitioner. Id. Thomas did not see anything in Petitioner's hands. Id. The two men walked across the hallway and out of Thomas' view. Thomas then heard a gunshot from the direction the men had just walked, saw Cabbagestalk fall backwards, and heard a woman scream. She did not observe any physical altercation between the two men or any weapons. Id.
The third witness, the only witness to observe the actual shooting, was Mr. Raymond Wolf, a 25-year-old postal carrier delivering the building's mail. (ECF No. 2-2 at 228-30.) Cabbagestalk was in the building's lobby with an acquaintance (who was never located and did not testify at trial) and opened the building's locked doors to let Wolf in. (Id. at 230-31.) While Wolf was distributing mail to the residents' individual mailboxes, Petitioner entered the lobby and started arguing with Cabbagestalk. (Id. at 233.) Wolf testified that he heard Petitioner say, “stay away from my daughter.” (Id. at 245.) Cabbagestalk responded, “you can't tell me where to be.” (Id. at 236.) According to Wolf, Cabbagestalk then started “getting in the older guy's face a little bit,” while Cabbagestalk's acquaintance attempted to restrain Cabbagestalk. (Id. at 237.)
Wolf further testified that Cabbaggestalk threw a few punches at Petitioner but did not believe the punches made contact. (Id. at 239.) After Cabbagestalk swung a couple of times, Wolf noticed Petitioner holding a gun slightly above his waist and pointed away from Petitioner. (Id. at 241-42.) He further observed Cabbagestalk “swiping” at the gun but could not recall whether Cabbagestalk swiped at the gun with an open or closed hand. (Id. at 239-40). At some point before Cabbagestalk's last swing or swipe, Cabbagestalk said, “if you going to pull a gun out, you better use it.” (Id.) Petitioner did just that, shooting Cabbagestalk in the chest. Wolf did not see the gun's flash but heard the shot ring and saw Cabbagestalk wounded on the floor. (Id. at 250-51.)
The police arrived to find Cabbagestalk lying face up in the lobby, already dead, with a single shell casing next to him. (ECF 1-7 at 279.) Flores directed the police to Petitioner's apartment where they recovered his service weapon, a semiautomatic Glock pistol, from the kitchen drawer. (ECF No. 12 at 140-142.) Forensic testing revealed that the shell casing found in the lobby was fired from Petitioner's gun.
Petitioner was indicted for murder in the second degree, manslaughter in the first degree, and criminal use of a firearm in the first degree.
Procedural history
i. Trial and Sentencing
Petitioner's trial commenced on September 19, 2016 and concluded on September 29, 2016. Prior to summations, Petitioner asked the court to instruct the jury on a justification defense pursuant to New York Penal Law § 35.15. The trial court denied the request, reasoning that the evidence, even when viewed in a light most favorable to the defendant, did not warrant a self-defense jury instruction. (See ECF No. 2-4 at 1.) On October 3, 2016, the jury rendered a verdict finding Petitioner not guilty of murder in the second degree but guilty of manslaughter in the first degree. He was sentenced to 18 years in prison. (ECF No. 2-1 at 2729.)
ii. Appellate Division
On appeal, the Appellate Division, First Department, over a two-justice dissent, reversed. The First Department held that Petitioner was entitled to a self-defense jury instruction because “the trial evidence, when viewed in the light most favorable to defendant, supports a conclusion that defendant feared for his life.” Brown, 160 A.D.3d at 44. The court further reasoned that the initial aggressor doctrine, which bars a self-defense justification when the defendant was the first to introduce deadly force, would not bar a self-defense justification in this case because a reasonable jury could have found Petitioner was not the initial aggressor because he held the gun to his side and did not point it at his victim. Id. at 49-50.
The Appellate Division also held that the People could not prevail on the “initial aggressor” doctrine because the People failed to preserve that argument in their briefing and arguments before the trial court. Brown, 160 A.D.3d at 49. The Court of Appeals disagreed, holding that “the question of whether the trial court correctly denied Mr. Brown's request for a justification instruction, including on initial aggressor grounds, is preserved.” Brown, 33 N.Y.3d at 320 n.2; see also C.P.L. § 470.05(2).
It bears noting that the two dissenting Justices found that the “defendant became the first and only participant in the altercation to threaten the use of deadly physical force,” and “did so without any basis for fearing that Cabbagestalk was about to use such force on him,” and that a “reasonable person in defendant's circumstances would harbor no belief that the use of deadly force was necessary to avert the imminent use of deadly physical force by Cabbagestalk.” Brown, 160 A.D.3d at 60, 62 (Kahn, J., dissenting). One Justice of the Appellate Division granted the People leave to appeal to the Court of Appeals. The People appealed.
iii. Court of Appeals
On May 7, 2019, the New York Court of Appeals unanimously reversed the Appellate Division's decision. The court reasoned that “it is uncontested both that Mr. Cabbagestalk was unarmed and that Mr. Cabbagestalk swiped at the gun only after Mr. Brown wielded it. On the facts of this case, taken in the light most favorable to Mr. Brown, we hold that the trial court's refusal to charge justification was not error, because Mr. Brown was the initial aggressor as a matter of law.” Brown, 33 N.Y.3d at 321. In short, the Court of Appeals found that Petitioner was the initial aggressor and that he was not entitled to a justification jury instruction pursuant to New York Penal Law § 35.15(2)(a).
iv. The Instant Petition
On December 11, 2020, Petitioner filed for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1) & (2). Specifically, Petitioner argues that the Court of Appeals ruling denying a justification instruction violated his due process rights.
Exhaustion
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal habeas relief from a state court conviction is generally unavailable unless the petitioner “has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To exhaust state remedies, a petitioner must fairly present his or her federal constitutional claims to the highest state court. See Daye v. Attorney Gen. of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc). In Picard v. Connor, the court ruled that as long as the substantial equivalent of a federal habeas corpus claim was first presented to the state courts the issue was fairly presented even if the petitioner did not cite “book and verse on the federal constitution” in his or her state claim. 404 U.S. 270, 277-78 (1971). Furthermore, in Jackson v. Edwards, the Second Circuit ruled that because the petitioner's challenge of a state court's denial of a selfdefense jury instruction and his subsequent habeas petition were “virtually identical,” the petitioner's constitutional claim was “fairly presented” to the state courts. 404 F.3d 612, 621 (2d Cir. 2005). Similarly, here, the justification issue was fairly presented to the state courts. Indeed, Respondents do not contest the fact that Petitioner properly exhausted the remedies available to him in state court. Accordingly, I now turn to the merits of the Petition.
Habeas Review of Jury Instructions
Under 28 U.S.C. § 2254(d) :
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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). Generally, a federal court may not grant habeas relief for a “mere error of state law.” Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990). However, while “federal habeas corpus relief does not lie for errors of state law,” Lewis v. Jeffers, 497 U.S. 764, 780 (1990), errors under state law can result in cognizable constitutional due process violations. What due process requires will often depend on what is required under state law. Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001). Indeed, once states have promulgated laws defining criminal conduct, “federal due process protects a defendant from conviction unless he is shown in a fair proceeding to have violated those laws.” Id.
When alleging a due process violation for a trial court's failure to provide a particular jury instruction, “a finding that the petitioner was erroneously deprived of a jury instruction to which he was entitled under state law is the first step in [determining] whether that error violated the petitioner's federal due process rights.” Id. Accordingly, courts only grant habeas relief for a failure to charge the jury with a self-defense instruction where the evidence supported such a charge under applicable state law and where the failure to give such a charge was sufficiently harmful to violate a constitutional right. See Cupp v. Naughten, 414 U.S. 141, 146 (1973).
More specifically, habeas relief in this context cannot be granted without asking three questions. First, was the petitioner entitled to a justification charge? Second, if so, did the failure to give one result in a denial of due process? Third, if so, did the state court's contrary conclusion constitute an unreasonable application of clear Supreme Court law? Jackson, 404 F.3d at 621; see also DeLeon v. Lempke, 401 Fed.Appx. 610, 611-12 (2d Cir. 2010) (summary order).
Furthermore, a state court's factual findings are entitled to deference on federal habeas review unless the petitioner presents clear and convincing evidence, supported by the record, to the contrary. See 28 U.S.C. § 2254(e)(1); Black v. Griffin, No. 15-cv-8112 (ALC), 2019 WL 2551685, at *15 (S.D.N.Y. Jan. 11, 2019) (“under Section § 2254(e)(1), a state court's factual findings are ‘presumed to be correct,' and that presumption can only be overcome by ‘clear and convincing evidence'”) (citations omitted), report and recommendation adopted, No. 15-cv-8112 (ALC), 2019 WL 2548132 (S.D.N.Y. June 20, 2019).
Discussion
i. Petitioner was not Entitled to a Justification Charge.
Consistent with the legal standards set forth above, the Court must first determine whether Petitioner was entitled to a justification charge under New York law. Jackson, 404 F.3d at 621.
a. Applicable Law
New York Penal Law § 35.15(1) provides that a person may:
use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person.§ 35.15(2) further provides:
A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or about to use deadly physical force.
In evaluating the viability of a self-defense jury instruction, New York case law establishes both “a subjective and an objective component: The fact-finder must determine that the defendant believed deadly physical force was necessary and that a reasonable person would have believed the use of deadly physical force was necessary under the same circumstances.” Edwards, 404 F.3d at 623; see also People v. Goetz, 68 N.Y.2d 96, 115 (1986) (confirming that a jury must first determine whether a defendant “believed deadly force was necessary to avert the imminent use of deadly force . . . [and] in light of all the circumstances . . . if a reasonable person could have had these beliefs”). Accordingly, a self-defense jury instruction is warranted if “on any reasonable view of the evidence, the fact finder might have decided that defendant's actions were justified.” People v. Padgett, 60 N.Y.2d 142, 145 (1983); see also Davis, 270 F.3d at 124. New York courts have further clarified that “the jury must be instructed on all claimed defenses which are supported by a reasonable view of the evidence-not by any view of the evidence, however artificial or irrational.” People v. Butts, 72 N.Y.2d 746, 750 (1988) (emphasis in original); see also DeLeon, 401 Fed.Appx. at 612.
Under New York law a self-defense justification is not warranted where the defendant was the “initial aggressor.” New York Penal Law § 35.15(1)(b). New York courts have expanded the “initial aggressor” doctrine to include “the first person in the encounter to use deadly physical force,” even if not the first person to use physical force. People v. McWilliams, 48 A.D.3d 1266, 1267 (4th Dep't 2008) (emphasis in original). New York courts have also found that the first person to threaten deadly physical force can be deemed the initial aggressor. See People v. Petty, 7 N.Y.3d 277, 285 (2006).
The term “deadly physical force” is defined as “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.” N.Y. Penal Law § 10.00(11). To be sure, the threat presented by wielding a gun constitutes a threat of deadly force. People v. Dodt, 61 N.Y.2d 408, 414-415 (1984). In People v. Magliato, the New York Court of Appeals held a defendant's “use of the pistol to ‘scare off' [the assailant] unquestionably placed [the assailant] in the imminent risk of grave danger and, therefore, constituted the ‘use of deadly physical force.'” 68 N.Y.2d 24, 29 (1986). “Thus, the imminent threat to use a gun against another is, necessarily, a threat of deadly physical force.” Brown, 33 N.Y.3d at 322.
Finally, in determining whether the evidence warrants a justification charge, the reviewing court must view the record in the light most favorable to the defendant. See People v. McManus, 67 N.Y.2d 541, 549 (1986).
b. Analysis
In determining whether Petitioner was entitled to a self-defense jury instruction, I must first assess whether Petitioner was the initial aggressor.
I. Petitioner Used Deadly Physical Force.
Petitioner used deadly force when he pulled out his gun while arguing with Cabbagestalk. Indeed, it is well-held that “the threat presented by a gun . . . constitutes deadly physical force.” Dodt, 61 N.Y.2d at 414-415. In Dodt, despite the fact that the defendant did not even display a gun when he threatened to shoot his victim, the defendant was found to have abducted his victim by the “threatened use of deadly force.” Id. at 414. A fortiori, Petitioner introduced the use of deadly force in the case at bar by displaying a loaded gun. Furthermore, even if Petitioner introduced the gun merely to scare, and not threaten, Cabbagestalk, “[c]onduct intended merely to scare off an assailant or to keep him at bay . . . constitutes the ‘use of deadly physical force.'” Magliato, 68 N.Y.2d at 26; see also People v. Berk, 217 A.D.2d 941, 942-43 (4th Dep't 1995), aff'd, 88 N.Y.2d 257 (1996) (ruling defendant's entry into a room while displaying a loaded gun in plain view of the victim could be construed as a threat of deadly force).
The fact that Petitioner did not aim his weapon at Cabbagestalk does not alter the analysis. As Petitioner correctly points out, a New York court has stated, in dicta, that “[t]he mere display or brandishing of a pistol may, perhaps, create an insufficiently imminent threat to life to be considered ‘use' of deadly physical force.” Magliato, 68 N.Y.2d at 30. However, that Magliato decision was issued in 1986. Since then, the trend of New York case law suggests that merely displaying a loaded gun in plain view constitutes deadly physical force. See People v. Vega, 33 N.Y.3d 1002, 1006-07 (2019) (“even where a defendant merely . . . ‘threaten[s]' to use a dangerous instrument, a jury would presumably find that the defendant employed deadly physical force by virtue of the instrument's capacity to imminently cause death or other serious physical injury”) (emphasis in original); People v. Joyce, 150 A.D.3d 1632, 1634 (4th Dep't 2017) (“[a]lthough defendant may have aimed the gun at victim's raised arm, such action constituted deadly physical force regardless of where defendant aimed the weapon inasmuch as defendant fired a loaded weapon at the victim from a close range”) (emphasis added); cf. Berk, 217 A.D.2d at 943 (“the testimony of defendant that he entered the room armed with a loaded gun in plain view provided a sufficient basis for the jury to conclude that defendant was the initial aggressor”). Thus, it is clear that Petitioner used deadly physical force on the night of the incident.
II. Petitioner's Use of Deadly Force was not in Response to Deadly Force.
Petitioner was unjustified in using deadly physical force because, as the Court of Appeals found, “the uncontroverted evidence in this case is that Mr. Cabbagestalk did no more than argue with Mr. Brown before Mr. Brown drew his gun.” Brown, 33 N.Y.3d at 324 n.5.Given those factual findings and Petitioner's failure to refute them with clear and convincing evidence no reasonable person in Petitioner's shoes could have believed deadly force was necessary. As such, Petitioner was the first to introduce deadly physical force in the altercation by drawing his gun.
As noted above, a state court's factual findings are entitled to deference on federal habeas review unless the petitioner presents clear and convincing record evidence to the contrary. See 28 U.S.C. § 2254(e)(1).
The record supports the Court of Appeal's finding on this issue for a number of reasons. First, all three witnesses testified to hearing the two men argue without any evidence of a physical altercation or physical contact. Even the mail carrier, Raymond Wolf, who observed all the events leading up to the shooting, testified that Cabbagestalk was swinging at Petitioner while Cabbagestalk's acquaintance was holding him back, but he did not think that Cabbagestalk made contact with Petitioner. (ECF 2-2 at 239.) Under New York law, the threat of an imminent punch is not a threat of deadly force and does not justify responding with deadly force. See People v. Goley, 113 A.D.3d 1083, 1083-84 (4th Dep't 2014) (holding that “[a]lthough defendant told the police that the victim was about to strike her with a ‘hammer fist' when she stabbed him,” that did not justify the use of deadly force).
Second, even if Cabbagestalk did make contact with Brown, a “single, albeit crushing punch” is “ordinary, not deadly, physical force.” People v. Bradley, 297 A.D.2d 640, 641 (2d Dep't 2002) (emphasis in original); see also People v. Owusu, 93 N.Y.2d 398, 403 (1999) (confirming that “fists are not dangerous instruments”). As such, even if Cabbagestalk was the first to introduce physical force in the altercation, Petitioner was the first to introduce deadly force by wielding a gun. By responding to mere physical force with deadly physical force, Petitioner was the initial aggressor. See McWilliams, 48 A.D.3d at 1267 (stating that the term initial aggressor properly includes the first person in the encounter to use deadly physical force even if not the first person to use physical force). Petitioner fails to cite any authority in support of the proposition that a punch constitutes an introduction of deadly physical force. Nor is the Court aware of any such authority.
Third, even if Cabbagestalk attempted to gain control of Petitioner's gun, Cabbagestalk swiped at the gun only after Petitioner brandished it-i.e., after Petitioner had already established himself as the initial aggressor.
Petitioner argues, in his moving brief, that Cabbagestalk swiped at Petitioner's firearm while it was still holstered. However, Petitioner fails to cite any evidence whatsoever that could reasonably support such a factual interpretation of the record. Indeed, Petitioner concedes this point in his reply brief. (ECF No. 13 at 8 (“it is uncontested both that Cabbagestalk was unarmed and that Cabbagestalk swiped at the gun after Mr. Brown wielded it”).)
Petitioner has not advanced a single colorable argument to suggest that it was Cabbagestalk that introduced deadly physical force on the night of the incident.
Petitioner also relies on inapposite case law in arguing to the contrary. In People v. Schwartz, the Appellate Division, Second Department found error in the trial Court's failure to instruct the jury on a justification defense with respect to the charge of manslaughter in the second degree. 168 A.D.2d 251, 253 (1st Dep't 1990). In Schwartz, the defendant introduced the gun - not as a weapon - but in an attempt to sell the gun to someone. The defendant further testified that after he failed to make a sale he went into a bathroom to wipe the fingerprints off of the gun and that, when he emerged from the bathroom, another individual lunged at him and grabbed for the gun. Id. at 252. Thus, in Schwartz the firearm was not introduced as a weapon, but as an item to be sold. It was not until another individual lunged for the gun to try and steal it that deadly physical force was introduced into the situation. Therefore, it would have been reasonable for a jury to have concluded, in that specific scenario, that the defendant was not the initial aggressor.
People v. Smith, also relied on by Petitioner, is similarly inapposite. In Smith, the two deceased victims had held defendant at gunpoint and attempted to force defendant to perform sexual acts. People v. Smith, 234 A.D.2d 484, 485 (2d Dep't 1996). The defendant managed to swipe the gun away from one of the eventual victims and fired numerous shots at that individual when he lunged after the gun to take it back. On these facts, the Appellate Division, Second Department found that the trial court should have charged the jury on justification as to that shooting.
In this case, however, Petitioner was the first person to introduce a firearm and he did so in connection with a domestic dispute. Thus, the above-referenced cases do not aid Petitioner's argument in any way.
Petitioner also argues that he withdrew from the encounter after drawing his gun. Because the evidence shows that Petitioner attempted to walk away from Cabbagestalk, Petitioner argues that the trial court should have provided a justification instruction to the jury. Petitioner's argument on this point misapprehends the applicable law. Penal Law § 35.15(1) justifies the use of force from an initial aggressor in cases where the initial aggressor withdraws from the encounter and effectively communicates such withdrawal to the eventual victim. This section only applies to the use of non-deadly, ordinary physical force. See New York Penal Law § 35.15(1)-(2). The use of deadly physical force is governed by Penal Law § 35.15(2), which merely provides, in pertinent part, that a person may not use deadly physical force unless that individual reasonably believes that another person is “using or about to use deadly physical force.” It does not, as Petitioner apparently contends, permit an individual to introduce a threat of deadly force, walk a few feet away from an altercation, and then use deadly physical force in response to another's physical attacks.
Furthermore, even assuming the law operated as Petitioner proposes, Petitioner merely claims that Petitioner “walked away from Cabbagestalk.” (ECF No. 13 at 6.) Petitioner fails to cite any case law to show that merely taking a few steps away from Cabbagestalk constituted a successful withdrawal under New York law.
In sum, because Petitioner was the first, and only, person to introduce deadly physical force, “[n]o reasonable view of the evidence here would support a justification defense.” People v. Kerley, 154 A.D.3d 1074, 1075 (2017).
III. The Petition Must be Denied.
Having determined Petitioner was the initial aggressor and was not entitled to a selfdefense justification, there can be no finding that Petitioner was erroneously deprived of a jury instruction to which he was entitled under New York law. Accordingly, the Petition fails to satisfy the first prerequisite for habeas relief. Jackson, 404 F.3d at 621.
Once such a determination has been made, the Court “need not reach the second and third steps of the analysis.” Taylor v. Capra, 412 F.Supp.3d 126, 136 (E.D.N.Y. 2019).
Conclusion
For the reasons set forth above, I respectfully recommend that the Petition be denied and dismissed in its entirety.
Notice
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
If any party files written objections to this Report and Recommendation, the opposing party may respond to the objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Vernon S. Broderick at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Broderick. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).