Opinion
01 CV 0136 (SJ).
August 11, 2004
MICHAEL K. HEGDAL, DIN 97-A-3294, Sing Sing Correctional Facility, Ossining, New York, Petitioner, Pro Se.
CHARLES J. HYNES, ESQ., Kings County District Attorney, By: Leonard Joblove, Esq., Sholom J. Twersky, Esq., Assistant District Attorneys, Brooklyn, New York, Attorneys for Respondent.
MEMORANDUM AND ORDER
Petitioner Michael Hegdal ("Petitioner"), acting pro se, brings the above-captioned Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, the petition for habeas corpus is denied.
BACKGROUND
Petitioner was arrested on May 31, 1996, following a high-speed collision. Petitioner was driving a stolen car, which crashed into another vehicle, causing the death of the other driver, Morris Golubtchik. Petitioner was charged in Kings County with Murder in the Second Degree, Manslaughter in the Second Degree, Reckless Endangerment in the First Degree, Reckless Driving, and several additional crimes related to his possession and use of the stolen vehicle. Petitioner went to trial before a jury on April 10, 1997. The evidence at trial indicated that Petitioner was driving a stolen automobile when he was approached by police officers. (Trial Transcript ("Tr.") at 68, 150.) Petitioner swerved out of a line of cars waiting at a red light (Tr. at 70, 72, 160), crossed into oncoming traffic and drove through a red light (Tr. at 70, 157, 160), and eventually collided with another vehicle, while driving at an approximate speed of 55-60 m.p.h. (Tr. at 123). The force of the impact pushed Golubtchik's vehicle into a parked car (Tr. at 255), which was then pushed into a bus shelter (Tr. at 213). Golubtchik was immediately transferred to the hospital, where he was pronounced dead. (Tr. at 299.)
No autopsy was performed, because the victim's family asserted that an autopsy was prohibited by their religious beliefs. (Tr. at 291, 302, 318.) The Defense was permitted to argue that absence of an autopsy to the jury, but was permitted to introduce Public Health Law § 4210-c, which provides in part:
1. Notwithstanding any other provision of law, in the absence of a compelling public necessity, no dissection or autopsy shall be performed over the objection of a surviving relative or friend of the deceased that such procedure is contrary to the religious belief of the decedent, or, if there is otherwise reason to believe that a dissection or autopsy is contrary to the decedent's religious beliefs.
2. For the purposes of this section: (a) "compelling public necessity" shall mean: (i) that the dissection or autopsy is essential to the conduct of a criminal investigation of a homicide, as defined in section 125.00 of the penal law, of which the decedent is the victim. . . . (Pub Health § 4215-c.)
At the close of evidence, the Defense requested the trial court that the jury be instructed to consider the lesser included offense of criminally negligent homicide. The court denied the request, on the grounds that "there is no reasonable view of the evidence" to support that charge. (Tr. at 351.)
At the conclusion of trial, the jury found Petitioner guilty of Manslaughter in the Second Degree and Criminal Possession of Stolen Property in the Third Degree, but acquitted him of Murder in the Second Degree. He was sentenced by the trial judge, Judge Albert Tomei, to consecutive terms of seven and one-half to fifteen years on the manslaughter conviction and three and one-half to seven years on the stolen property conviction.
Following his conviction, Petitioner appealed his conviction to the New York Supreme Court, Appellate Division, Second Department ("Appellate Division"), which affirmed. People v. Hegdal, 699 N.Y.S.2d 73 (N.Y.App.Div., 2d Dep't 1999). He was denied leave to appeal to the New York Court of Appeals on April 13, 2000. People v. Hegdal, 94 N.Y.2d 948 (2000). Thereafter, Petitioner filed a writ of error coram nobis with the Appellate Division, which was denied on July 15, 2002.People v. Hegdal, 745 N.Y.S.2d 489 (N.Y.App.Div., 2d Dep't 2002).
In his initial petition before this Court, filed on January 8, 2001, Petitioner claimed that he was denied due process of law by the trial court's failure to charge the jury with the lesser included offense of Criminally Negligent Homicide. On February 19, 2002, upon Petitioner's request, this Court stayed the petition while he exhausted state court remedies. The federal petition was reopened on July 1, 2003, after Petitioner filed a Motion to Renew the Petition. In this submission, Petitioner added his claim that appellate counsel was ineffective for failing to argue that the People did not establish the actual cause of death of the victim because no autopsy was performed.
DISCUSSION
I. Exhaustion Requirement
For a federal habeas court to consider a claim, the federal habeas corpus statute requires that the applicant have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). See also Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994). "[T]he petitioner must have presented the legal and factual basis of the claim to every state court with jurisdiction to hear the claim," Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), exhausting all the remedies available in state courts, or must demonstrate that "there is an absence of available State corrective process." 28 U.S.C. § 2254(b)(1). Petitioner exhausted his original claim regarding jury instructions in his direct appeal, and exhausted his claim regarding the ineffective assistance of appellate counsel by raising it in his petition for a writ of error coram nobis.
II. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if the federal court concludes that 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." 28 U.S.C. § 2254(d). A state court decision is "contrary to" clearly established Federal law where "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). A state court decision involves an "unreasonable determination of the facts" where the state court correctly identifies the governing legal principle from Supreme Court precedent, but unreasonably applies that principle to the facts of the petitioner's case.Id. at 413. Thus, a federal court may only grant habeas relief where the state court's application of clearly established federal law was not only erroneous, but objectively unreasonable.Id. at 409. The federal court may not substitute its judgment for that of the state court.
Federal claims which have not been adjudicated on the merits are reviewed under the de novo pre-AEDPA standard. Washington v. Schriver, 255 F.3d 45 (2d Cir. 2001). This Court finds that under the applicable standards of review, neither of Plaintiff's claims may serve as the basis for habeas relief.
III. Jury Instructions
Petitioner alleges that he was denied due process of law because the trial court erred in refusing to charge the jury on the lesser-included offense of Criminally Negligent Homicide. New York Criminal Procedure Law § 300.50 requires that the trial court must, if requested by either party, "submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater." N.Y.C.P.L. § 300.50(1), (2).
The Appellate Division already considered this claim and found that the refusal to charge the lesser crime was proper under New York State law. Specifically, the state court held that "[c]ontrary to the defendant's contention, the trial court properly declined to charge criminally negligent homicide (Penal Law § 125.10) as a lesser-included offense of manslaughter in the second degree (Penal Law § 125.15[1]). There was no reasonable view of the evidence, viewed in the light most favorable to the defendant, which would support a finding that the defendant was unaware of the substantial and unjustifiable risk of death caused by his actions." People v. Hegdal, 699 N.Y.S.2d at 74 (internal citations omitted).
Applying the AEDPA standard of review, this Court finds that the Appellate Division's decision was not contrary to, nor did it involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court held that due process requires a trial court to submit jury instructions on lesser-included offenses in capital cases if the evidence warrants such a charge. However, neither the Supreme Court nor the Second Circuit have applied Beck to non-capital cases. Id., 447 U.S. at 638 n. 14; Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996) (reasoning that applying Beck to non-capital cases would "involve the announcement of a new rule" in cases on habeas review, a result that is specifically barred by Teague v. Lane, 489 U.S. 288 (1989) ("[H]abeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review")). Accordingly, this Court finds that the trial court's failure to submit the lesser-included charge was not "contrary to," nor did it involve "an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d).
Petitioner argues, in his Reply Affidavit of April 16, 2001, that this Court should determine whether it matters whether the case was a capital or a non-capital case. This is the precise determination that Teague prohibits — using habeas corpus to extend a new constitutional rule of criminal procedure.
Further, this Court finds that the state court reasonably applied that principle to the facts of Petitioner's case. Petitioner argues that a reasonable jury could conclude that Petitioner did not consciously disregard a known risk, and contends that the Appellate Division misstated the facts in holding otherwise. This Court disagrees. It is clear from the evidence presented at trial that Petitioner acted with reckless disregard for the risks created by his conduct when he drove into oncoming traffic, ignored traffic signals, and drove at twice the speed limit. Petitioner challenges the Appellate Division's factual finding that "[o]ther bystanders and drivers were also hit and suffered serious injuries." People v. Hegdal, 699 N.Y.S.2d at 74. This Court finds that, in addition to Golubtchik, at least one other person was seriously injured when the parked car was pushed into the bus shelter: Rose Raccuglia was pushed through the glass of the shelter and sustained serious injuries. (Tr. at 226-29, 245-46, 259, 251.)
The Court finds that the refusal to charge a lesser-included offense was in accordance with New York law and with the demands of the United States constitution, as determined by the Supreme Court of the United States. Accordingly, this claim for habeas corpus relief is denied.
IV. Ineffective Assistance of Appellate Counsel
Petitioner claims his Sixth Amendment right to counsel was denied because Appellate counsel was ineffective in failing to argue on appeal that the People did not establish the actual cause of death. Specifically, Petitioner argues that because no autopsy was performed on the victim, the State failed to prove that Petitioner was responsible for his death.
This claim was raised and denied on the merits in Petitioner's state petition for a writ of error coram nobis, and thus the AEDPA standard of review applies. Accordingly, the Court may only consider whether the Appellate Division's denial of this claim was in accord with the two-pronged standard established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In order to successfully challenge a denial of the Sixth Amendment right to counsel, first, a petitioner must show that counsel's performance was deficient by demonstrating that counsel's assistance fell below an objective standard of reasonableness under "prevailing professional norms." Id. at 687-88. Second, a defendant must show that the deficient performance prejudiced the defendant. In so doing, a defendant must establish that there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
The Strickland standard applies to the evaluation of appellate counsel. See Smith v. Murray, 477 U.S. 527, 536-37 (1986) (citing the Strickland standard while considering the performance of appellate counsel); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992) ("[O]ur Circuit has also adopted theStrickland two-prong test in assessing the effectiveness of appellate counsel."). Furthermore, the Supreme Court has specifically stated that appellate counsel is not required to bring every non-frivolous issue requested by the defendant.Jones v. Barnes, 463 U.S. 745, 754 (1983). In order to meet the first prong of Strickland, Petitioner must demonstrate that his appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker."Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
Applying this standard, it is clear that Petitioner's argument is without merit. Appellate Counsel raised two issues on appeal: that the trial court erred in refusing to charge the lesser-included offense of Criminally Negligent Homicide and that the trial court abused its discretion in permitting the State to introduce Petitioner's prior felonies in the event that Petitioner testified. Although these claims were ultimately unsuccessful, they did at least present prima facie arguments, one of which Petitioner continues to advance in collateral review. On the other hand, the claim that Petitioner now alleges should have been introduced is without merit.
Petitioner argues that the State failed to establish that Petitioner was responsible for Golubtchik's death. The Supreme Court has held that a challenge on the grounds of insufficient evidence is a valid federal constitutional claim. Virginia v. Jackson, 443 U.S. 307, 314 (1979). Yet, the pertinent standard for federal habeas review of a claim turning upon insufficiency of the evidence in a state court trial is whether " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id., 443 U.S. at 319.
This Court has reviewed the evidence at trial and finds that it was sufficient for the jury to have found that Petitioner caused Golubtchik's death. Several witnesses testified that immediately after the impact, Golubtchik was unconscious and was bleeding from his nose and ears. (Tr. at 89, 175, 278.) The State also presented the testimony of Dr. Joseph Elleto, the emergency room physician who examined the victim. Dr. Elleto testified that he conducted a series of tests and procedures to identify any signs of life and to determine the nature of Golubtchik's injuries. He found that Golubtchik was not breathing, had no pulse or blood pressure, and had no response to pupil dilation. (Tr. at 296-97.) Dr. Elleto explained that blood coming from the ears during chest compressions was an indication of a basal skull fracture. (Tr. at 296.) He also noted a contusion on the chest (Tr. at 297), a pelvic fracture (Tr. at 298), evidence of a hip or femur fracture (Tr. at 299), and evidence of internal bleeding (Tr. at 300). He pronounced the cause of death as "head trauma, basal skull fracture." (Tr. 300.) The State also produced the death certificate, which listed the cause of death as "Multiple Blunt Impact Injuries." ("Pet'r's Mem. in Supp. of Renewed Pet. ("Renewed Pet."), 13.)
Nonetheless, Petitioner argues that this evidence was insufficient, because only an autopsy would definitively rule out an intervening cause of death, such as a heart attack or stroke. (Renewed Pet., 9.) On cross-examination, Dr. Elleto acknowledged that without an autopsy, he could not definitively rule out intervening factors. (Tr. at 316.)
At trial, the Defense attempted to question Dr. Elleto about why an autopsy was not conducted. The State objected to this testimony, and a discussion ensued outside of the presence of the jury. Defense Counsel argued that Public Health Law § 4210-c required an autopsy as part of an investigation into a homicide, and asked the court to take judicial notice of that statute. The State argued that an autopsy was not necessary to their investigation, and thus that the law had not been violated. (Tr. at 302-09.) The court denied the Defense request to put the statute before the jury, on the ground it did not require an autopsy unless the People thought it necessary to the conduct of a criminal investigation. (Tr. at 311-12.) The trial court further determined that the absence of an autopsy went to the weight of the evidence regarding the cause of Golubtchik's death (Tr. at 307, 308), and thus the Defense was permitted to argue on summation regarding the lack of an autopsy (Tr. at 312, 380).
Petitioner now reiterates his argument that the "compelling public necessity" exception should apply because an autopsy was "essential to the conduct of a criminal investigation of a homicide." (Renewed Pet., 6.) He further contends that an autopsy was necessary "[i]f not for the benefit of the prosecution's case, then to rule out any intervening factors or alternative causes of death; for the benefit of the petitioner." (Renewed Pet., 9.) However, Petitioner misconstrues the purpose of the statute. The Public Health Laws were not introduced for the protection of wrong-doers, but rather, to balance the competing interests of the victim's religious beliefs and society's need to solve crime. This Court agrees with the trial court that Public Health Law § 4210-c requires an autopsy over the objection of the victim's family only where the authorities conducting a criminal investigation determine that one is necessary to establish the cause of death. Here, the trial court found that an autopsy was not "essential" to the criminal investigation, but rather went to the weight of the evidence in proving causation for the death. This Court finds no error in the trial court's determination. Accordingly, the Court finds that Appellate Counsel was reasonable in not raising a non-meritorious claim. Petitioner's ineffective assistance of appellate counsel claim is denied.
CONCLUSION
For the foregoing reasons, Petitioner's application for a writ of habeas corpus is denied. The Clerk of the Court is directed to close this case. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued. See Miller-El v. Cockrell 537 U.S. 322, 336 (2003) (reiterating the standard for issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253(c)). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith.SO ORDERED.