Opinion
21-CV-1543 (JPC) (JLC)
08-12-2024
KELLY McTIERNAN, Petitioner, v. JEFFREY TEDFORD, Superintendent, Adirondack Correctional Facility, Respondent.
To the Honorable John P. Cronan, United States District Judge
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
Petitioner Kelly McTiernan seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d) following her conviction of manslaughter in the first degree. She was sentenced to a determinate prison term of 20 years followed by five years of supervised release. For the reasons set forth below, I recommend that McTiernan's petition be denied.
McTiernan is transgender and identifies as a woman. Pet. at 1-2; Transcript 1100-01. Accordingly, this Report and Recommendation will refer to McTiernan with female pronouns.
I. BACKGROUND
The following facts are drawn from the record of proceedings before the state trial court. In view of McTiernan's conviction, the Court summarizes the evidence presented at trial in the light most favorable to the verdict. See Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012) (citation omitted).
A. Arrest and Indictment
In the early morning of October 12, 2007, McTiernan was sitting on a stoop in the West Village in Manhattan with Abdul Flynn. Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“Pet.”), Dkt. No. 1, at 2-3. McTiernan had been panhandling and drinking with Flynn when Fain Upshur joined them asking for a light. State Court Transcript (“Tr.”), Dkt. No. 8, at 37. McTiernan gave her cell phone to Flynn so that he could make a call but soon after suspected that Upshur and Flynn were conspiring to steal the phone. Pet. at 5-7. After Flynn and Upshur began walking ahead of McTiernan toward Washington Square Park, McTiernan stabbed Upshur and attempted to recover her phone from Flynn by chasing him through the street. Pet. at 6-7. Soon after, Upshur died from the stab wound to his chest. Pet. at 1. McTiernan was arrested on October 16, 2007, Tr. 619, and claimed that she stabbed Upshur in self-defense in the course of being robbed. Pet. at 1-2. On November 5, 2007, a grand jury in New York County returned an indictment charging McTiernan with murder in the second degree, N.Y. Penal Law § 125.25(1), and criminal possession of a weapon in the third degree, N.Y. Penal Law § 265.02(1). Pet. at 1 n.2; Memorandum of Law in Support of Answer Opposing Petition for a Writ of Habeas Corpus (“Opp.”), Dkt. No. 10, at 2.
The transcript of McTiernan's trial can be found at Docket No. 8. Pinpoint citations refer to the pagination that runs throughout the transcript.
B. 2010 Trial and Appeal
Following a jury trial in the Supreme Court, New York County, McTiernan was convicted on January 26, 2010 of murder in the second degree, and she was sentenced to a term of 20 years to life in prison. People v. McTiernan, 119 A.D.3d 465, 465 (1st Dep't 2014). McTiernan appealed the conviction to the Appellate Division, First Department, arguing that the trial court's charges “misstated the law on the use of deadly physical force to defend against a robbery.” Id. at 467. The Appellate Division agreed, finding that the trial court had erred by failing to clearly explain that “deadly physical force may be permissible to defend against a robbery even if the alleged robber is using only physical force, and not deadly physical force.” Id. at 468 (a person is justified in using deadly physical force if he “reasonably believed it necessary to do so in order to resist [his victim's] imminent use of physical force against him in the course of a robbery attempt”) (citing, inter alia, People v. Davis, 74 A.D.2d 607, 609 (2d Dep't 1980)). The Appellate Division found that this error was “prejudicially defective,” and that although McTiernan's counsel did not object to the trial court's erroneous charge, reversal was warranted “in the interest of justice.” McTiernan, 119 A.D.3d at 467. McTiernan's conviction was reversed by the Appellate Division on July 17, 2014, and the case was remanded for a new trial. Id. at 465.
C. 2016 Trial
McTiernan's second trial began on July 26, 2016 and a verdict was reached on August 5, 2016. Tr. 1, 1460. Witnesses to the incident on the night of October 11, 2007-including Neill Pollinger, Dwayne Garner, Laura Tinen, and Jason White -testified about McTiernan's actions and her interactions with Abdul Flynn and Fain Upshur. See Tr. 117-32, 591-95, 730-46, 1065-66. Detectives, police officers, and a forensic examiner also testified. See Tr. 61-79, 154-98, 900-83. Flynn and McTiernan provided the most significant testimony, which is summarized below. See Tr. 308-91, 1094-1253.
1. Abdul Flynn Testimony
Flynn testified that on October 11, 2007 he was drinking and panhandling in the West Village when he saw McTiernan on the street. Tr. 308. He and McTiernan decided to panhandle together. Tr. 308-10. They sat on a stoop, which Flynn described as “a quiet spot [where] nobody w[ould] bother us.” Tr. 313. They then moved next door to the neighboring stoop, where “[t]here was a guy sitting on those stairs [who] never said anything.” Tr. 314. Flynn testified that McTiernan described herself to Flynn as a pimp, and “when [s]he pulled out [her] phone [a] girl's picture was on the phone.” Tr. 315. Flynn then asked McTiernan if he could use her phone to “make a call to Rikers because [he] got [out] . . . a few days prior.” Id. McTiernan set the call up and handed Flynn her phone. Tr. 316. While Flynn's call was on hold, McTiernan began “flipping” a knife behind him, but she later put it away. Tr. 319. Flynn then testified that “Ken” (Fain Upshur), “the guy that was sitting next door on the stairs,” came over. Tr. 325. Upshur asked McTiernan and Flynn for a lighter and if either of them would “like a hit [of crack].” Tr. 326. Flynn testified that he did not take a hit, but that McTiernan did. Id.
Flynn then testified that McTiernan suggested they go to Washington Square Park to “pick up some money and get some more drinks for my girls.” Tr. 328. He said that McTiernan walked ahead of the other two and that she was “quite a bit of distance from where we were sitting on the stoop.” Id. Flynn was still in possession of McTiernan's phone, and he testified that he “was going to give [her] the phone at that point.” Tr. 328. He said that Upshur asked if he could tag along, to which Flynn agreed because he “was trying to get nice.” Id. While McTiernan was walking ahead of Flynn and Upshur, Flynn decided he liked McTiernan's phone, saying “[i]t's nice. I could keep this phone. Evidently [McTiernan] doesn't care about it because [s]he is way down there.” Tr. 329-30. Flynn told Upshur to “walk [McTiernan] down to [the bar],” ahead of him so that he could leave with her phone. Tr. 348. “[She] handed me the phone to use [it]. I was just going to keep-my thing was [s]he was so far [a]head, [s]he was always so far ahead that to me the phone wasn't really an issue. That he wasn't concerned even about the phone.” Tr. 520. Flynn testified that he only decided to keep McTiernan's phone when she was walking far ahead of him. Tr. 521-22. He stated that he did not have a plan with Upshur to steal the phone, explaining, “I never really try to involve people in my scenarios. I try to do-to be by myself . . . I don't generally use people in those situations.” Tr. 524.
McTiernan then told Flynn to give her back the phone, walking back in his direction. Tr. 331. Flynn testified that McTiernan was screaming “give me back my phone.” Tr. 542. Upshur then said something in McTiernan's ear that Flynn could not hear, and they “start[ed] walking . . . going the opposite direction.” Tr. 332. Flynn then said that “it just happened so fast, [McTiernan] turned and [s]he just plunged at [Upshur]. When [s]he plunged at him, he was leaning over. He was limp. Now [McTiernan] [was] looking directly at me.” Tr. 331. He further testified that McTiernan said, “I killed your man. You're next.” Id. Flynn said, “[i]t happened so fast. It happened just really fast. When they walked away, just a second, shoom, [Upshur] was laying on him.” Tr. 354. “[McTiernan] curved around and punched it in him and [s]he looked at me in my face so I could witness it.” Tr. 573. Flynn said, “[o]nce [Upshur] dropped, I could see the knife in [McTiernan's] hand. Once I s[aw] the knife and saw the blood on [it], I said uh-huh, this is serious.” Tr. 331. Flynn and McTiernan then were “off to the cat-and-mouse game,” during which Flynn tried to “put the cars between” himself and McTiernan for a “better chance for survival.” Tr. 332. Flynn still had McTiernan's phone, and once he realized that “it is the phone [s]he is after,” he threw it with “such a force that the phone would break.” Id. The force of the phone hitting the ground caused the battery to fly out and become lost under a car. Tr. 333. Flynn then fled while McTiernan looked for the phone's battery. Tr. 333-34.
2. Kelly McTiernan Testimony
McTiernan began by testifying about her background, explaining that she developed alcohol and heroin additions as a young adult while working as a computer programmer. Tr. 1094-95. She explained that the crimes underlying her previous convictions “were basically done to support a drug habit . . . [t]hey were really bad things.” Tr. 1097. McTiernan testified about being transgender, saying: “In my case it means that I identify as a female, basically. I have since I was a kid.” Tr. 1101. She added that “some people are actually offended by [her appearance] or would draw the conclusion that [she] was gay or trans or something like that and it draws negative attention.” Tr. 1105. She explained that she “dressed in a feminine way” and was the target of many violent attacks that had left her in a coma and needing reconstructive surgery on her face. Tr. 1105-06. McTiernan further stated that “this is part of one of the reasons I began to carry a knife. I just-it seemed something that would protect me from that kind of stuff.” Tr. 1108. She said that she purchased the knife she carried during the incident to ward off [p]redators . . . in situations where [she] felt that [her] life was in danger, . . . -it would be used for self-defense.” Tr. 1110-11.
McTiernan testified that she “may have taken a hit or two [of crack] to be sociable” on the night of the incident. Tr. 1113. She said that she walked past Flynn, “a homeless gentleman, a bigger stockier guy,” and he asked if he could use her cell phone. Tr. 1124. McTiernan denied panhandling, drinking, or smoking crack with Flynn. Tr. 1127. She further mentioned that “Mr. Upshur came over and sat down and he took a hit-he needed a lighter . . . he saw the phone and he asked [Flynn] whose phone is that.” Tr. 1128. She said that “I knew when they got up and left that I wasn't going to get my phone back. They kind of walked away like screw you, we're keeping it. And I followed them.” Tr. 1129. “I said give me my phone, give me my phone. I was hoping it would draw attention and someone would call the police and get the phone back that way.” Id. She said that she was not yelling, and she was “trying to balance not spooking [Upshur and Flynn] and drawing enough attention to get someone to call 911.” Tr. 1130.
McTiernan then testified that Flynn told her “you're not getting your . . . phone back.” Tr. 1132. She said that Upshur said to get away from them and then lunged at her “with his right hand toward [her] stomach and [she] blocked [it].” Tr. 1132. McTiernan explained that she “bladed [her] body and blocked with [her] right hand and slipped the knife off [her] belt and snapped it off and [she] poked him.” Tr. 1132. She testified that she saw a “glint,” but could not be sure that it was a knife. Tr. 1132-33. McTiernan said that it was “absolutely clear” that she was “being robbed at that point in time.” Tr. 1133. She “was either going to get stabbed [her]self or [she] was going to get [her] head kicked in until [she was] unconscious” and that she did not know “how far it would go.” Tr. 1133. “Basically[,] my idea was to stop the attack on me. That's why I did what I did.” Tr. 1134. McTiernan claimed that Flynn's testimony that McTiernan threatened to kill him was incorrect, that those were “empty threats,” and that she “wasn't going to stab a man that's running away.” Tr. 1135-36.
McTiernan expressed regret, saying “a man died at my hands . . . There's no way you cannot feel bad about that . . . This is the anthesis [sic] of everything I believe in.” Tr. 1136. She testified that it was clear that she was being robbed and that there was no doubt in her mind that Upshur was attempting to rob her when he “lunged” at her. Tr. 1138. McTiernan said that she “made a very serious error in judgment” when she gave Flynn her phone. Tr. 1159. She testified that she did not deliberately stab Upshur in the heart but that she did deliberately aim for the middle of his body. Tr. 1164. She was “concern[ed] . . . that there were two people and [she was] one person.” Tr. 1167. She stated that she “stabbed one man one time because he attacked” her. Id.
McTiernan acknowledged that Flynn “did nothing physical” to prevent her from taking her phone back. Tr. 1213. She stated that “when more than one person attacks me during a robbery, I have had very bad experiences.” Tr. 1214. She admitted that the “glint” may have been a reflection in her glasses or the zipper on Upshur's jacket. Tr. 1223. McTiernan testified that, based on her prior experiences, she knew that “stabbing a victim in the manner that [she] did stab [Upshur] could result in death.” Tr. 1249. However, she stated that it was not her intention to kill him. Id. McTiernan testified that she felt badly about killing Upshur, but believed she would have been “seriously hurt” or killed had she not stabbed him. Tr. 1252-53. She stated that it was “almost obvious” that she was “in the throws [sic] of a robbery or being robbed when [she] stabbed Fain Upshur.” Tr. 1253.
D. Jury Verdict and Conviction
On August 5, 2016, the jury found McTiernan not guilty of murder in the second degree, guilty of manslaughter in the first degree, and not guilty of criminal possession of a weapon in the third degree. Tr. 1460-61. On October 28, 2016, McTiernan was sentenced to a term of 20 years in prison. People v. McTiernan, 176 A.D.3d 484, 484 (1st Dep't 2019).
E. Post-Conviction Proceedings
McTiernan appealed her conviction, arguing that (1) the trial court erred in its jury instructions for justification defenses to manslaughter; (2) her right to a fair trial was violated when she was cross-examined about acquitted and dismissed conduct; and (3) the cumulative effect of these errors rendered her trial unfair. See Brief for Defendant-Appellant, Dkt. No. 9-1, at 33, 41, 47, 51, 57. On October 10, 2019, the Appellate Division affirmed McTiernan's conviction, rejecting each of McTiernan's arguments and reasoning that any “isolated misstatement” in the jury charge regarding use of physical force “could not have affected the jury's verdict.” McTiernan, 176 A.D.3d at 485. The Appellate Division noted that McTiernan's objections to the jury instructions concerning use of deadly physical force while defending against a robbery and use of deadly physical force when effecting an arrest were unpreserved and therefore would not be reviewed “in the interest of justice.” Id.
As an alternative holding, the Appellate Division found no basis for reversal, reasoning that “[i]n three places in its oral charge, as well as in a written charge given to the jury on consent, the court stated the correct standard regarding justifiable use of deadly physical force against a robber who is using ordinary physical force.” Id. Although the trial court “mistakenly referred to the robber's use of ‘deadly' physical force,” the Appellate Division found that “[t]his isolated misstatement in a charge that, viewed in its entirety, was correct, could not have affected the jury's verdict.” Id. McTiernan's application for leave to appeal to the Court of Appeals was denied on February 21, 2020 without a written opinion. People v. McTiernan, 34 N.Y.3d 1161 (2020).
F. Habeas Proceedings
On February 20, 2021, McTiernan, represented by counsel, timely filed her petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1)-(2) along with supporting papers, arguing that the New York state trial court committed “a variety of jury charge errors . . . that were not corrected on appeal.” Pet. at 1. She contends that these errors undermined her right to present justification defenses and reduced the prosecution's burden of proof, and that the errors are “of federal constitutional dimension.” Pet. at 1. Specifically, McTiernan argues that (1) she was deprived of justification defenses in violation of the federal constitutional right to a fair trial under the Due Process Clause of the Fourteenth Amendment; (2) her counsel's failure to object to the misstatement of law regarding use of deadly physical force constituted ineffective assistance of trial counsel; and (3) the cumulative effect of the jury instruction errors constituted a violation of her right to a fair trial under the Due Process Clause of the Fourteenth Amendment. See Pet. at 10, 29, 30. Respondent filed a memorandum of law opposing McTiernan's petition, (“Opp.”), Dkt. No. 10, along with supporting declarations and documents on May 13, 2021. Dkt. No. 9. McTiernan submitted her reply papers on June 23, 2021. Reply to Opposition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“Pet. Reply”), Dkt. No. 14.
The petition has been referred to me for a report and recommendation. Dkt. No. 4.
II. DISCUSSION
A. Legal Standard for Habeas Corpus Relief Under Section 2254
1. The Exhaustion Doctrine
The Court may entertain a writ of habeas corpus from a person in custody on the ground that “[s]he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas relief unless the petitioner has first exhausted her claims in state court. 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 court 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.”); see also 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this action, if he has the right under the law of the State to raise, by any available procedure, the question presented.”); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”). The exhaustion requirement is grounded in principles of comity and federalism. Id. at 844 (“Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.”) (citations omitted).
2. Procedural Bar to Claims Deemed Exhausted
Even if a claim has been deemed exhausted, federal courts “generally will not consider a federal issue in a case ‘if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007) (quoting Lee v. Kemma, 534 U.S. 362, 375 (2002)). “[W]hen ‘faced with an independent and adequate state ground' for the decision, ‘principles of comity and federalism' compel us to ‘defer' to the state law ground and thus to decline to review the federal claim.” Whitley v. Ercole, 642 F.3d 278, 285 (2d Cir. 2011) (quoting Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999)). In such circumstances, petitioners are procedurally barred from seeking federal review. See Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996).
The procedural bar for independent and adequate state grounds applies even if the state court had also addressed the merits in reaching an alternative holding. See, e.g., Whitley, 642 F.3d at 286 n.8; see also Harris v. Reed, 489 U.S. 255, 264, n.10 (1989) (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.”).
The merits of a procedurally defaulted claim may not be reviewed by a federal court “unless the prisoner can demonstrate . . . that failure to consider the claim[ ] will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Murray v. Carrier, 477 U.S. 478, 495-96 (1986). A fundamental miscarriage of justice is “an extraordinary case where a constitutional violation has probably resulted in the conviction of one who is actually innocent[.]” Id. at 496. “The petitioner's burden in making a gateway showing of actual innocence is deliberately ‘demanding.'” Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019) (quoting House v. Bell, 547 U.S. 518, 538 (2006)). The standard of innocence in this context “references ‘factual innocence, not mere legal insufficiency.'” Id. at 657 (citing Bousley v. United States, 523 U.S. 614, 623 (1998)).
3. Standard for Review Under AEDPA
The AEDPA “imposes a highly deferential standard for evaluating state-court rulings and demands that [a] state-court decision be given the benefit of the doubt.” Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565 U.S. 65, 66 (2011)). “[I]t is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citations omittd). Under the AEDPA, courts may only grant a habeas petition if the challenged state court decision was (1) “contrary to, or involved in an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” at the time of the state court decision, or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d)(1)-(2).
First, the “Supreme Court has instructed that section 2254(d)(1)'s ‘contrary to' and ‘unreasonable application of' clauses have independent meaning.” Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (citing Williams v. Taylor, 529 U.S. 362, 404-05 (2000)). “A state court decision is ‘contrary to . . . clearly established Federal law, as determined by the Supreme Court' when ‘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.'” Carmichael, 848 F.3d at 544 (quoting Williams, 529 U.S. at 412-13); see also Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (circuit precedent, even if “merely reflect[ing]” Supreme Court precedent, does not constitute “clearly established federal law” for purposes of Section 2254(d)(1)). In determining whether a state court's decision is contrary to clearly established federal law, only the holdings-not dicta-of the Supreme Court are relevant. See Carey v. Musladin, 549 U.S. 70, 74 (2006); Watson v. Greene, 640 F.3d 501, 508 (2d Cir. 2011).
A state court makes an unreasonable application of federal law if it “correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 572 U.S. 415, 426 (2014) (citations omitted). Such application of federal law must be “‘objectively unreasonable,' not merely wrong; even ‘clear error' will not suffice.” White, 572 U.S. at 419 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). “The state court decision must be ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods v. Etherton, 578 U.S. 113, 117 (2016) (quoting White, 572 U.S. at 420). The standard is “difficult to meet,” and it was intended to be. Metrish v. Lancaster, 569 U.S. 351, 357-58 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)).
Second, a state court's determination of fact “may not [be] characterize[d] . . . as unreasonable ‘merely because [a reviewing court] would have reached a different conclusion in the first instance.'” Brumfield v. Cain, 576 U.S. 305, 313-14 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Rather, Section 2254(d) requires a reviewing court to “accord the state trial court substantial deference. If ‘[r]easonable minds reviewing the record might disagree' about the finding in question, ‘on habeas review that does not suffice to supersede the trial court's . . . determination.'” Brumfield, 576 U.S. at 314 (quoting Rice v. Collins, 546 U.S. 333, 341-342 (2006)). “Whether a state court's decision was unreasonable must be assessed in light of the record the court had before it.” Holland v. Jackson, 542 U.S. 649, 652 (2004).
4. Standard for Review of State Court Jury Instructions
Mere questions of state law are not grounds for federal habeas relief. Estelle, 502 U.S. at 67-68; Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“Federal habeas corpus relief does not lie for errors of state law.”). “In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law.” Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990) (citing Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)); United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 50 (2d Cir. 1975). In a criminal trial, the State must prove each element of the offense, and “jury instruction[s] violate[] due process if [they] fail[] to give effect to that requirement.” Middleton v. McNeil, 541 U.S. 433, 437 (2004); see also Sandstrom v. Montana, 442 U.S. 510, 520-21 (1979).
The standard of review for state jury instructions is not whether the “instruction is undesirable, erroneous, or even universally condemned,” but instead whether the “ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 146-47 (1970)); see also Blazic, 900 F.2d at 541; Wright v. Smith, 569 F.2d 1188, 1191 (2d Cir. 1978). Moreover, a “single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Boyde v. California, 494 U.S. 370, 378 (1990) (citing Cupp, 414 U.S. at 146-47). The Supreme Court in Cupp explained that although this does not mean that a single instruction alone may never rise to the level of a constitutional error, “a judgment of conviction is commonly the culmination of a trial . . . [N]ot only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.” Cupp, 414 U.S. at 147. If the charge as a whole is ambiguous, the question is whether there is a “‘reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution.” Middleton, 541 U.S. at 437 (quoting Estelle, 502 U.S. at 72) (internal quotations omitted).
5. Standard for Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of trial counsel, a petitioner must establish that: (1) “counsel's representation fell below an objective standard of reasonableness” and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688-94 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. The court may reject an ineffective assistance of counsel claim for failure to satisfy either part of the Strickland standard without reaching the other. Pendergrass v. United States, No. 16-CV-5714 (RA) (DF), 2019 WL 7333816, at *8 (S.D.N.Y. Oct. 30, 2019) (citing Strickland, 466 U.S. at 697 (“[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed”)), adopted by 2019 WL 7293394 (Dec. 30, 2019).
In evaluating the prejudice suffered by a petitioner as a result of counsel's ineffective assistance, the court looks to the “cumulative weight of error” in order to determine whether the prejudice “reache[s] the constitutional threshold.” Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). In addition, “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Strickland, 466 U.S. at 696.
Although there is no “mechanical” rule, “the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Id. at 696. A single, serious error may be sufficient grounds for an ineffectiveness claim. United States v. Cronic, 466 U.S. 648, 657 n.20 (1984). In assessing counsel's performance, “the court must be ‘highly deferential,' must ‘consider[ ] all the circumstances,' [and] must make ‘every effort . . . to eliminate the distorting effects of hindsight.'” Lindstadt, 239 F.3d at 199 (quoting Strickland, 466 U.S. at 688-89).
B. Analysis
1. Erroneous State Law Jury Instructions and McTiernan's Right to a Fair Trial
McTiernan argues that there were three errors in the trial court's jury charge. Pet. at 10. First, she claims that the trial court failed to define “immediately” within the definition of robbery, thus preventing the jury from understanding that she was “a victim of a robbery and was therefore justified in using deadly force to repel the robbery.” Id. Second, she argues that the trial court failed to properly instruct the jury on the defense of justification when effecting an arrest of a robbery. Id. Third, she contends that the trial court improperly stated the law in the justification charge on the use of deadly physical force in the context of a robbery. Id. She claims that each of these errors violated her constitutional right to a fair trial pursuant to the Sixth and Fourteenth Amendments of the United States Constitution. Id.
McTiernan argues that each of the claimed jury charge errors meets the standard in Cupp v. Naughten, and amounts to a violation of federal due process of law. Pet. at 22. She bases her argument on Second Circuit precedent in which the court found that the trial court erroneously denied the petitioner a justification jury instruction to which he was entitled under New York law regarding a manslaughter charge. Pet. at 22; see Davis v. Strack, 270 F.3d 111, 130-31 (2d Cir. 2001).
The Second Circuit has outlined a three-step test for errors regarding justification defense jury charges. Davis, 270 F.3d at 123-24. The first question is whether the trial court “erroneously deprived [the petitioner] of a jury instruction to which [s]he was entitled under state law” and whether “the fact finder might have decided that the [petitioner's] actions were justified” under state law. Id.
The second question is whether the jury instruction error violates the Cupp v. Naughten standard, which asks whether “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Cupp, 414 U.S. at 147. Before a federal court can overturn a conviction resulting from a state trial in which the challenged jury instruction was used, “it must be established not merely that the instruction is undesirable, erroneous, or even ‘universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.” Id. at 146. However, “not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation.” Middleton, 541 U.S. at 437. If the petitioner claims that the jury instruction is ambiguous, “the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380.
The third question is whether the jury instruction error warrants habeas corpus relief under 28 U.S.C. § 2254. Put another way, the issue is whether federal habeas relief is warranted where the state court decision “was either ‘contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States,' or ‘involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.'” Davis, 270 F.3d at 133 (quoting Williams, 529 U.S. at 404-05 (emphasis omitted)). McTiernan argues that each of the alleged jury instruction errors warrants a new trial and that the cumulative effect of the errors violated her due process. See Pet. at 20, 22-26.
In response, Respondent argues that several of McTiernan's claims are procedurally barred because they were “decided on adequate and independent state law grounds, specifically, that by failing to object at trial, [McTiernan] did not preserve [her] complaints as a matter of law for appellate review.” Opp. at 33. Respondent contends that “[e]rrors in state jury charges are questions of state law and not reviewable on a petition for writ of habeas corpus, absent a showing that the charging error deprived the petitioner of a federal constitutional right.” Opp. at 33-34 (citing Cupp, 414 U.S. at 147; Davis, 270 F.3d at 123; Blazic, 900 F.2d at 541). Each of McTiernan's jury charge claims will be addressed in turn.
a. Immediacy of Force Instructions
First, McTiernan argues that the trial court's instructions regarding the immediacy of the use of force during a robbery were erroneous. Pet. at 13-15. She asserts that one of her “strongest defenses” was that she was justified in stabbing Upshur while being robbed. Pet. at 13. New York Penal Law Section 35.15(2) provides that “[a] person may not use deadly physical force upon another person under [these] circumstances . . . unless . . . he or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery.” N.Y. Penal Law § 35.15(2)(b). Here, the trial court, in its jury charge defining robbery, instructed that:
[a] person forcibly steals property and commits robbery, when in the course of committing a larceny, such person uses or threatens the immediate use of physical force upon another person for the purpose of . . . [1] compelling the owner of such property to deliver up the property; or [2] preventing or overcoming resistance to the taking of the property; or [3] preventing or overcoming resistance to the retention of the property immediately after the taking.Tr. 1434-35 (emphasis added). McTiernan argues that this language, and specifically the word “immediately,” does not reflect the law in New York. Pet. at 14-15. She claims that the legal definition of robbery is more expansive “because robbery still occurs even if there is a delay between the taking and the use of force to retain the property.” Pet. at 15. “The force in this case was not immediately after the taking, but it was still a robbery, and the jury needed to know that.” Pet. Reply at 1. Therefore, McTiernan claims that her “version of events” is consistent with the “actual, not the CJI [Criminal Jury Instructions']” definition of robbery. Pet. at 15. She contends that the term “immediately” in the jury charge was “inconsistent with its plain meaning and its insertion in the instruction without clarification caused the court to mis-define robbery in light of the facts presented in the case.” Pet. at 16.
As a threshold matter, this claim (as well as the other jury instruction-related claims) should be deemed exhausted because it was presented by McTiernan at each relevant level in New York state court. See O'Sullivan, 526 U.S. at 845 (“Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . [petitioners] must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.”). The Appellate Division determined that “whether or not the victim used force immediately after taking defendant's phone was a question of fact for the jury, even if it credited [McTiernan]'s account.” McTiernan, 176 A.D.3d at 485 (internal citation omitted). It concluded that “[t]he court was not required to grant [McTiernan's] request for an instruction that a particular scenario (corresponding to [her] testimony) would constitute robbery as a matter of law.” Id. Because state courts, like federal courts, are obliged to enforce federal law, the state courts “should have the first opportunity to review [a petitioner's] claim and provide any necessary relief.” O'Sullivan, 526 U.S. at 844 (quoting Rose v. Lundy, 455 U.S. 509, 515-16 (1982)). In exhausting this claim, McTiernan asserts that “the trial court's failure to clarify the meaning of ‘immediately' within the definition of robbery and to give a charge under § 35.30(4) implicate[s] and satisf[ies] 28 U.S.C. § 2254(d)(1) and (d)(2).” Pet. at 27.
Although the New York Court of Appeals denied McTiernan's application for leave to appeal without an opinion, the Supreme Court has explained that, “[w]ith respect to unexplained state-court judgments . . . where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
i. Adequate and Independent State Ground Doctrine
The Supreme Court has held that the “adequate and independent state ground doctrine applies on federal habeas,” such that “an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show ‘cause' for the default and ‘prejudice attributable therefore,' or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.'” Harris, 489 U.S. at 262 (citations omitted); accord Coleman, 501 U.S. at 735. “A federal claimant's procedural default precludes federal habeas review . . . only if the last state court rendering a judgment in the case rests its judgment on the procedural default.” Harris, 489 U.S. at 262. In order to preclude federal review under the “adequate and independent” doctrine, the last reviewing state court's judgment must “clearly and expressly state . . . that its judgment rest[ed] on a state procedural bar.” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997) (quoting Glenn, 98 F.3d at 724). A federal court on habeas review determines whether the state court judgment rests on adequate and independent grounds. Glenn, 98 F.3d at 724 (2d Cir. 1996); Coleman, 501 U.S. at 736.
The Second Circuit has clarified that “federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim.” Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); accord, e.g., Harris, 489 U.S. at 264 n.10 (“[T]he adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.”). Therefore, “as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision,” the adequate and independent doctrine “curtails reconsideration of the federal issue on federal habeas.” Roman v. Filion, No. 04-CV-8022 (KMW) (AJP), 2005 WL 1383167, at *22 (S.D.N.Y. June 10, 2005) (citing Harris, 489 U.S. at 264 n.10), adopted by Order dated Dec. 20, 2005 (Dkt. No. 16).
ii. This Claim is Procedurally Barred
The function of federal courts on habeas review of a state court proceeding “is not to reenact the proceeding or peer over the shoulder of the state court judge ruling on questions of state law.” Estelle, 502 U.S. at 67-68. Review of the state's application of its own rules is deferential. Downs v. Lape, 657 F.3d 97, 101 (2d Cir. 2011). The Second Circuit has held that federal courts are to determine only “whether the state ruling falls within the state's usual practice and is justified by legitimate state interests, not whether the state court ruling was correct.” See Whitley, 642 F.3d at 286 (“Our task is not to determine whether [the state] ruling was correct, but to determine its adequacy to preclude federal habeas review.”) (citing Cotto v. Herbert, 331 F.3d 217, 247 (2d Cir. 2003)).
If the state court's disposition of a federal claim “rests upon a state-law ground that is independent of the federal question and adequate to support the judgment,” the Court will not review that claim. Medina v. Gonyea, 111 F.Supp.3d 225, 233 (E.D.N.Y. 2015) (quoting Downs, 657 F.3d at 101-02). To be “adequate,” a state law ground must be “firmly established and regularly followed by the state.” Richardson v. Greene, 497 F.3d 212, 218 (2d Cir. 2007) (internal citations and quotation marks omitted). A state law basis is sufficiently adequate if “the case law interpreting [the state law] . . . displays consistent application in a context similar to [the instant case].” Id. at 220 (citation omitted).
Although McTiernan argues that the trial court's failure to define “immediately” within the context of the “immediately after the taking” portion of the trial court's robbery instruction was “unreasonable,” Pet. at 27, it is “not the province of a federal habeas court to reexamine state-court determinations on statelaw questions,” Estelle, 502 U.S. at 63. Federal courts are limited to “deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Id. at 68 (citing Rose v. Hodges, 423 U.S. 19, 21 (1975)). The Appellate Division reasonably concluded that the trial court was not required to stray from the standard charge in order to further define “immediately” for the jury. McTiernan, 176 A.D.3d at 485. The instruction given was the standard New York criminal jury instruction (“CJI”), and the conclusion reached by the Appellate Division was not an “unreasonable” application of either New York state or federal law. See Waddington v. Sarausad, 555 U.S. 179, 192 (2009) (state court reasonably applied Supreme Court precedent in finding jury instruction unambiguous and not “objectively unreasonable”).
Under New York law, robbery requires an “immediate use” or threatened immediate use of “physical force.” N.Y. Penal Law § 160.00. The word “immediately” in the robbery statute “has its ordinary meaning” and “[n]o specific time is required” for the jury to find this element of the crime to have been met. People v. Dekle, 56 N.Y.2d 835, 836 (1982). Appellate courts in New York have upheld robbery convictions where the larceny and the use of force were separated by a brief period of time but were part of a “continuous series of events.” Opp. at 49; see, e.g., People v. Gordon, 23 N.Y.3d 643, 652-53 (2014); People v. Jones, 282 A.D.2d 382, 382 (1st Dep't 2001); People v. Brown, 243 A.D.2d 363, 363 (1st Dep't 1997).
Even assuming that McTiernan's argument that the ordinary meaning of “immediately” is ambiguous is correct, her proposed instruction would have departed from the established statutory language. In response to McTiernan's statement that “[c]ommon sense should trump [the] CJI,” the trial court said, “The law trumps amendments to the law.” Tr. 1323. The trial court clarified that if the jury, during their deliberations, was confused about the meaning of “immediately,” they could request clarification from the court. Tr. 1321. However, there is no evidence of jury confusion, and no request was made for clarification over the definition of “immediately.” Moreover, the trial court's use of the CJI, quoting the statutory definition of robbery, cannot be determined to be a departure from New York's usual practice. See Whitley, 642 F.3d at 286. It is not for this Court to determine whether the state courts' interpretation of this jury instruction was correct. Id (citing Cotto, 331 F.3d at 247).
McTiernan's counsel argued at trial that “withholding property from the rightful owner by force regardless [of] when the actual taking occurs is robbery.” Tr. 1322. The trial court responded by adding: “[i]mmediately after the taking. Part and parcel of the same incident. If you believe that this is clearly not to someone you come to a month later and say give me the property and use force. That's not property.” Tr. 1322. In his summation, McTiernan's counsel defined robbery as “a forcible taking of property, somebody is using force against you to take or retain or withhold your property, like we got your cell phone, we are holding it and then come at you if you are complaining or want that property back, that is a forcible taking of property.” Tr. 1333.
iii. This Claim is Without Merit
Further, were this Court to reach the merits of the “immediacy” claim, it should find that the trial court did not act in an “objectively unreasonable” manner in finding that the jury properly deliberated and reached the verdict. Waddington, 555 U.S. at 192; Middleton, 541 U.S. at 436. Even if there was “ambiguity, inconsistency, or deficiency” in the instruction, such an error does not necessarily constitute a due process violation. Middleton, 541 U.S. at 437. McTiernan has not established that there was “‘a reasonable likelihood' that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt,” such that she was deprived of due process. Waddington, 555 U.S. at 190-91 (internal quotations and citation omitted). In any event, the trial court's decision not to further define “immediately” must be “viewed in the context of the overall charge.” Boyde, 494 U.S. at 378 (quoting Cupp, 414 U.S. at 146-47). When viewed within that context, there is nothing in the record to indicate that refusing to elaborate upon the meaning of “immediately” somehow “so infected the entire trial” that McTiernan's conviction was obtained in violation of due process. Middleton, 541 U.S. at 437 (quoting Estelle, 502 U.S. at 72). Therefore, this claim should be denied.
b. Defense of Justification When Effecting an Arrest
Second, McTiernan argues that her “detailed testimony about trying to stop a robbery and obtain[ing] police assistance” triggered the defense, under New York Penal Law Section 35.30, “to protect private citizens, themselves victims of crimes, who act in order to advance or facilitate an arrest of the perpetrator.” Pet. at 17-19. Section 35.30 of the Penal Law states that:
A private person acting on his or her own account may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense and who in fact has
committed such offense; and may use deadly physical force for such purpose when he or she reasonably believes such to be necessary to . . . [e]ffect the arrest of a person who has committed murder, manslaughter in the first degree, robbery, forcible rape or forcible criminal sexual act and who is in immediate flight therefrom.N.Y. Penal Law § 35.30(4)(b).
The Appellate Division held that McTiernan's claim that the court should have instructed the jury on the justification of use of deadly force to effect an arrest, Penal Law Section 35.30(4)(b), was unpreserved or, in the alternative, that it should be rejected on its merits. McTiernan, 176 A.D.3d at 485. McTiernan contends that she was “entitled to have the jury consider the defense of justification when effectuating an arrest” and that the failure “to provide the instruction . . . amounted to an ‘unreasonable application of clearly established federal law,' thus warranting habeas relief under § 2254(d)(1).” Pet. at 27 (quoting Rodriguez v. Heath, 649 Fed.Appx. 136, 140 (2d Cir. 2016)). Respondent counters that McTiernan's claim is both procedurally barred and without merit. Opp. at 39. While not contesting that the claim is exhausted, Respondent contends that because the Appellate Division found that McTiernan's claim regarding the lack of this instruction was unpreserved for appellate review, she should be “barred from raising [the] defaulted claim on habeas corpus review absent a showing of cause for, and prejudice from, the default,” which showing has not been made. Opp. at 39 (citing Coleman, 501 U.S. at 729).
i. This Claim is Procedurally Barred
The Appellate Division held that this issue was unpreserved and declined to review it “in the interest of justice.” McTiernan, 176 A.D.3d at 485. Although the Second Circuit has found that state court decisions holding that claims are either unpreserved or without merit are usually too ambiguous to preclude habeas review, that is not the case here. See, e.g., Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001) (“We have found a state court's reliance on a state procedural bar to be ambiguous, and thus refused to invoke a procedural bar, where . . . the state court rejected defendant's claims on appeal as ‘either meritless or unpreserved.'” (citation omitted)). Where, as here, the state court determined the claim to be unpreserved and declined to review “in the interests of justice,” courts in this Circuit have found that the claim is procedurally barred. See, e.g., Velasquez, 898 F.2d at 9 (state decision that denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds); Yapor v. Mazzuca, No. 04-CV-7966 (RCC) (AJP), 2005 WL 894918, at *22 (S.D.N.Y. Apr. 19, 2005) (declining to review challenge to jury instruction when state court ruled that claim was unpreserved), adopted by 2005 WL 1845089 (Aug. 3, 2005); James v. Ricks, No. 01-CV-4106 (SJ), 2003 WL 21142989, at *12 (E.D.N.Y. Mar. 6, 2013) (state decision that found claim procedurally barred and without merit rested on “adequate and independent” state grounds). Federal courts “generally assess the adequacy of a state ground of decision by examining whether the rule upon which the state court relied is ‘firmly established and regularly followed.'” Downs, 657 F.3d at 102 (quoting Lee, 534 U.S. at 376). In “exceptional cases,” the “exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.” Lee, 534 U.S. at 376. This is not an exceptional case.
New York's contemporaneous objection rule seeks “to ensure that ‘parties draw the trial court's attention to any potential error while there is still an opportunity to address it,' and to prevent those who fail to do so from ‘sandbagging' the opposing party and the trial court on appeal.” Whitley, 642 F.3d at 288 (quoting Cotto, 331 F.3d at 245, and Garcia, 188 F.3d at 82). The Second Circuit has repeatedly held that the contemporaneous objection rule is a firmly established and regularly followed New York procedural rule. Id. at 286 (“[I]t is with little difficulty that we conclude that the Appellate Division's express reliance on the state's contemporaneous objection rule in rejecting [petitioner's] appeal constitutes an ‘independent' state law ground for that decision.”); see, e.g., Richardson, 497 F.3d at 219; Garvey v. Duncan, 485 F.3d at 718; Taylor v. Harris, 640 F.2d 1, 2 (2d Cir. 1981); Rosario v. Burge, 542 F.Supp.2d 328, 337 (S.D.N.Y. 2008). Further, New York caselaw is consistent with the result in this case. See, e.g., People v. Griffin, 24 A.D.3d 237, 238 (1st Dep't 2005) (dismissing jury charge claim because, although defendant objected to charge at pre-charge conference, defendant failed to renew his objection after jury charge was read). Therefore, failure to object at trial when required by New York's contemporaneous objection rule is an adequate and independent state ground for the purposes of habeas review. See Wainwright, 433 U.S. at 86; Murray, 477 U.S. at 485-86; Franco v. Walsh, 72 Fed.Appx. 517, 518-19 (2d Cir. 2003) (petitioner's claim of an erroneous jury charge procedurally barred because “[n]o contemporaneous objection to the charge was lodged, and the Appellate Division found that the issue was therefore unpreserved”).
At the charging conference, McTiernan's counsel stated that “[t]here is also the concept of justification to effect an arrest and escape custody,” to which the trial court responded: “[t]hat does not apply to this case in any way and I am not charging that . . . [the] application is denied.” Tr. 1282. A “general objection is not sufficient,” because, as “New York's highest courts uniformly instruct,” to preserve a claim, a defendant must “specifically focus on the alleged error.” Whitley, 642 F.3d at 286 (quoting Garvey, 485 F.3d at 714) (collecting state court cases). There was no further objection to the court's determination that this instruction was inapplicable. In People v. Kerabinas, the case upon which the Appellate Division based its holding that this claim was procedurally barred, the defendant's request for an alibi defense instruction was denied by the trial court because it found there was no evidence in the record to support the defense. Kerabinas, 63 N.Y.2d at 872. Because the defendant did not dispute the matter, the Appellate Division determined that it was unpreserved for review. Id.
Here, based on the lack of clear objection to the trial court's instructions, it cannot be said that the state court's holding that this claim was unpreserved was an “exorbitant application” of state law. See Lee, 534 U.S. at 376. Had this Court been in the position of the Appellate Division, it may have found McTiernan's claim preserved based on the objections raised by McTiernan's counsel at the charging conference. However, because “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions,” Estelle, 502 U.S. at 63, this Court need not reach the merits of this claim.
Without a clear indication that New York courts have consistently held that objections to jury instructions that were only made during the charging conference, not after the jury was charged, adequately preserve the issue for appellate review, it cannot be determined that the Appellate Division's ruling was an improper exercise of discretion. Downs, 657 F.3d at 105. A state ground may be inadequate when “discretion has been exercised to impose novel and unforeseeable requirements without fair or substantial support in prior state law.” Walker v. Martin, 562 U.S. 307, 320 (2011) (citation omitted); see Garcia, 188 F.3d at 82 (“[A]s we can discern ‘no pretense that the [state] Court adopted its view in order to evade a constitutional issue, and the case has been decided upon grounds that have no relation to any federal question, [we will] accept . . . the [state court] decision whether right or wrong.'”) (quoting Wolfe v. North Carolina, 364 U.S. 177, 195 (1960)) (alteration in original)); Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir. 1990) (state ground “applied infrequently, unexpectedly, or freakishly” may “discriminat[e] against the federal rights asserted” and therefore be “inadequate”) (citations omitted).
In sum, the Appellate Division's decision makes it clear that this claim is procedurally barred. McTiernan's entitlement to the jury instruction on the justified use of deadly physical force while effectuating an arrest was decided on “adequate and independent state procedural grounds.” Harris, 489 U.S. at 262. McTiernan has not argued or shown “cause” for the default or “prejudice attributable thereto,” Murray v. Carrier, 477 U.S. at 485, nor has she demonstrated that failure to consider the federal claim will result in a “fundamental miscarriage of justice.” Id. at 495 (citing Engle v. Isaac, 456 U.S. 107, 135 (1982); see also Smith v. Murray, 477 U.S. 527, 537 (1986). Therefore, the instruction regarding use of force while effecting an arrest is not reviewable.
ii. This Claim is Without Merit
As an alternative holding, the Appellate Division rejected this claim on its merits because “[t]here is no evidence that [McTiernan] stabbed the victim in order to make or facilitate an arrest for robbery.” McTiernan, 176 A.D.3d at 485. For McTiernan to be granted relief under habeas review, she must establish that the state court's ruling was “contrary to” or “an unreasonable application of” Federal law. See 28 U.S.C. § 2254(d)(1). McTiernan has failed to meet this burden.
Due process does not require the giving of a jury instruction when such charge is not supported by the evidence. Hooper v. Evans, 456 U.S. 605, 611 (1982). Omissions or incomplete instructions are “less likely to be prejudicial than a misstatement of law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977). In Henderson, the Supreme Court rejected the petitioner's argument that the jury would have reached a different verdict had a more complete instruction been given. Id. at 15657. It compared the instructions given to the jury with those that the petitioner argued should have been given, and concluded that additional instructions “would not have affected [the jury's] verdict.” Id. at 156. Here, McTiernan's testimony did not indicate that she sought to effectuate an arrest of Upshur or Flynn after they had taken her phone. She argues that she was “yelling for her phone with the hope the police would be alerted,” Pet. Reply at 6, and that she was hoping someone would call the police because “the police can be useful in some situations,” and “[t]hey would have retrieved [her] phone.” Tr. 1131. However, apart from these statements, there is nothing to suggest that she took any action to effect an arrest of either Upshur or Flynn. Because the trial court's rejection of this instruction was not an error that could have “infect[ed] the entire trial” and is not otherwise an unreasonable application of Supreme Court precedent, McTiernan's claim is without merit. Cupp, 414 U.S. at 147. Therefore, this claim should be denied.
c. Instructions Related to the Use of Deadly Physical Force in Robbery
Third, McTiernan argues that, under New York law, it “is clear that a person is justified in using deadly physical force to prevent or terminate a robbery, even if the robber only uses or threatens mere physical force, as opposed to deadly force.” Pet. at 19. Section 35.15 of the New York Penal Law states, in relevant part, that a person may not use deadly physical force unless “(a) [t]he actor reasonably believes that such other person is using or about to use deadly physical force . . . or (b) [h]e or she reasonably believes that such other person is committing or attempting to commit . . . a robbery[.]” N.Y. Penal Law § 35.15(2). In its charge to the jury, the trial court correctly explained that a person can use deadly physical force “when, and to the extent that, he reasonably believes it to be necessary to defend himself from what he reasonably believes to be the use or the imminent use of unlawful physical force . . . and when he reasonably believes that the other individual is committing or attempting to commit a robbery.” Tr. 1431 (emphasis added). However, the court went on to state incorrectly:
To have been justified in the use of deadly physical force the defendant must have honestly believed that it was necessary to defend himself from what he honestly believed to be the use or imminent use of deadly physical force by Fain Upshur, that Fain Upshur was committing or attempting to commit a robbery and that a reasonable person in the defendant's position knowing what the defendant knew and being in the same circumstances would have believed that too.Tr. 1432-33 (emphasis added).
McTiernan therefore claims that “the jury was prompted to think that [she] had to believe that deadly physical force needed to be used to justify her actions” although she needed only be confronted by unlawful physical force. Pet. at 22. She argues that “by conflating the requirements for attackers' use of force in § 35.15(2)(a) (use of deadly physical force) and § 35.12(2)(b) (use of physical force while committing or attempting a robbery),” the jury was erroneously led to believe that McTiernan's use of deadly force “could only be justified if she believed Upshur was committing or attempting a robbery and about to use deadly physical force.” Pet. at 21-22 (emphasis in original).
McTiernan argues that, as in Davis v. Strack, the erroneous instruction at her trial “deprive[d] [her] entirely of [her] defense-on which [s]he had a significant possibility of prevailing-and to insure [her] conviction,” stating that the effect of the error was “catastrophic.” Pet. at 23 (quoting Davis, 270 F.3d at 132). McTiernan also contends that the court erred by failing to define “unlawful physical force” after defining “deadly physical force, “robbery,” and “attempt to commit a crime.” Pet. at 21 n.18; Tr. 1431-36. Additionally, she asserts that, “due to the sequence of instructions and the earlier inclusion of self-defense and deadly force in a general, non-robbery situation, the confusion may have also led the jury to falsely believe that even a robbery victim like [herself] had the duty to retreat.” Pet. at 22.
As McTiernan notes, the court provided written instructions to the jury in addition to oral instructions. Pet. at 22; see Tr. 1408; Final Instructions to the Jury (“Jury Instructions”), Dkt. No. 9-8. The trial judge told the jury that although he provided written copies of the jury charge “as an aid to your absorbing and remembering the instructions,” his oral instructions “are binding . . . in this case.” Tr. 1408. The court continued that “[i]f . . . I deviate from my oral instructions from the written copies in any way, it is the oral instructions that you must follow. If during your deliberations your memory of the oral instructions is inconsistent with what you see in the written copies, then advise me of that by sending a written note and I will address the discrepancy with you.” Tr. 1409. McTiernan acknowledges that the written instructions did not contain any errors, but she argues that the court's instruction to follow his oral instructions could have misled the jury. Pet. at 22 n.19; Jury Instructions at 17.
i. This Claim is Procedurally Barred
Respondent emphasizes that the trial court's written and oral jury instructions correctly stated the “unlawful physical force” standard three times, only erring in the final charge. Opp. at 54-55; see Tr. 1433. Respondent also notes that McTiernan's counsel did not object to the final, oral instruction that erroneously substituted “deadly physical force” for “unlawful physical force.” Opp. at 55; Tr. 1433, 1448-53.
The Appellate Division found that this issue was unpreserved and “decline[d] to review it in the interest of justice.” McTiernan, 176 A.D.3d at 485. As previously noted, a determination that a claim is unpreserved is a sufficient indication that the state court denied the claim based on procedural grounds. See Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005). As an alternative holding, the Appellate Division found no basis for reversal, stating that the error was “an isolated misstatement[,] . . . that, viewed in its entirety, was correct” and that it “could not have affected the jury's verdict.” McTiernan, 176 A.D.3d at 485. As discussed supra, “federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim.” Velasquez, 898 F.2d at 9; see also Harris, 498 U.S. at 264 n.10.
While this claim is also exhausted, because it was resolved by the Appellate Division on “a state law ground that is independent of the federal question,” it is procedurally barred from review despite its alternative ruling on the merits. Coleman, 501 U.S. at 729. The state court's judgment rests on “independent and adequate state procedural grounds,” namely that this claim was not preserved for appellate review. Id. at 730. Failure to object at trial is an “independent and adequate” state procedural bar. N.Y. Crim. Proc. Law § 470.05; see, e.g., Wainwright, 433 U.S. at 85-86 (contemporaneous objection rule is an adequate and independent state ground); Velasquez, 898 F.2d at 9 (violation of New York's contemporaneous objection rule, N.Y.C.P.L. § 470.05, is an adequate and independent state ground).
N.Y.C.P.L. § 470.05 states:
For purposes of appeal a question of law with respect to a ruling or instrument of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an “exception” but is sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in response to a protest by a party, the court expressly decided the question raised on appeal.
In addition, the Supreme Court has held that “a state court need not fear reaching the merits of a federal claim in an alternative holding.” Harris, 489 U.S. at 264 n.10 (emphasis in original). This “curtails reconsideration of the federal issue on federal habeas as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision.” Id. Here, the Appellate Division explicitly stated that this claim was unpreserved for appellate review and then rejected McTiernan's claim “in the interest of justice” and on its merits in an alternative holding. McTiernan, 176 A.D.3d at 485. Nonetheless, the Appellate Division's holding that this claim was unpreserved is an adequate and independent state ground precluding habeas review. See, e.g., Velasquez, 898 F.2d at 9; Kirsh v. Michetti, 787 F.Supp. 403, 406-07 (S.D.N.Y. 1992). Therefore, McTiernan's claim is precluded from review by this Court.
ii. This Claim is Without Merit
Even had McTiernan's imminent physical force claim been properly preserved, the Court should reject it on its merits. “[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Boyde, 494 U.S. at 378 (citation omitted). If the charge as a whole is ambiguous, the question is whether there is a “‘reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution.” Estelle, 502 U.S. at 72 (quoting Boyde, 494 U.S. at 380). As Respondent argues, the Second Circuit is “careful to distinguish” between a situation in which a petitioner “was erroneously deprived of a jury instruction to which [s]he was entitled under state law” from those in which the habeas petitioner “claims that ‘the contours of the defense, under the [state] law, were not properly explained.'” Opp. at 54 (quoting Mojica v. Fischer, 254 Fed.Appx. 28, 30 (2d Cir. 2007)).
The Appellate Division observed that “[i]n three places in its oral charge, as well as in a written charge given to the jury on consent, the court stated the correct standard regarding justifiable use of deadly physical force against a robber who is using ordinary physical force.” McTiernan, 176 A.D. at 485. McTiernan's claim fails because it does not present an issue of federal law. “State courts are ‘the ultimate expositors of state law,' Mullaney v. Wilbur, 421 U.S. 684, 691 (1975), and it is not the ‘province of a federal habeas court to reexamine state-court determinations on state-law questions.'” Mojica, 254 Fed.Appx. at 29 (quoting Estelle, 502 U.S. at 67). In People v. Mojica, the Appellate Division found that the trial court's “justification charge, when read as a whole, was both legally correct and applicable to the facts, and could not have caused any prejudice to defendant.” People v. Mojica, 264 A.D.2d 693, 693 (1st Dep't 1999). The reviewing court noted that “[w]hen a state court holds that a jury charge comports with the law of the state, ‘[w]e are not empowered to second-guess that ruling.'” Mojica, 254 Fed.Appx. at 30 (quoting DiGuglielmo v. Smith, 366 F.3d 130, 137 (2d Cir. 2004)).
Here, because the trial court correctly instructed the jury three times, provided accurate written instructions, and did not receive a note from the jury during deliberations indicating that there was confusion regarding the discrepancy, the erroneous instruction does not rise to a cognizable constitutional error on habeas review. See Middleton, 541 U.S. at 438 (“Given three correct instructions and one contrary one, the state court did not unreasonably apply federal law when it found that there was no reasonable likelihood the jury was misled.”). Reviewing the charge as a whole, there is insufficient evidence to find that the trial court's one erroneous statement of “deadly physical force” in this instance was reasonably likely to have misled the jury given the multiple other instances where the charge correctly stated the requisite level of unlawful physical force. See id. at 437-38. Even had the jury been confused by the discrepancy between the instructions, there is no record of a request to the court for clarification on the matter. Therefore, because the imminent physical force error “viewed in the context of the overall charge” did not “so infect[] the entire trial that the resulting conviction violate[d] due process,” Cupp, 414 U.S. at 147, McTiernan's claim should be denied.
2. Ineffective Assistance of Counsel
McTiernan also argues briefly (in a very short Point II of her petition) that her constitutional right to effective assistance of counsel was violated when her counsel failed to object to the “erroneous use of force jury charge under Penal Law § 35.10(2)(b).” Pet. at 29. Notably, McTiernan is represented by the same counsel in this habeas proceeding as she was during her trial, which raises questions about why this argument has been presented. She claims that her counsel's failure to object was “objectively unreasonable” and that “there is a reasonable probability that had counsel objected to the faulty instruction, the outcome of the trial would have been different.” Pet. at 29-30. Respondent asserts that the Appellate Division correctly determined that the court's instruction was effective regardless of the single mistake and that McTiernan's counsel's lack of an objection would not have significantly impacted the outcome of the trial. Opp. at 57; see Strickland, 466 U.S. at 688.
McTiernan was represented by Glenn A. Garber, Esq. at all the prior state proceedings as well as in this habeas proceeding.
In reviewing a state court's application of the Strickland standard to a claim of ineffective assistance of counsel, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable.” Paige v. Lee, 99 F.Supp.3d 340, 345 (E.D.N.Y. 2015) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011). This is a different inquiry than whether counsel's performance fell below Strickland's standard. Id. “Were that the inquiry, the analysis “would be no different than if, for example, [the district court] were adjudicating a Strickland claim on direct review of a criminal conviction in a United States [D]istrict [C]ourt.” Id. (quoting Harrington, 562 U.S. at 101).
Thus, McTiernan's counsel must establish on habeas review not that his own performance fell below Strickland's standards (which might raise conflict issues), but instead whether the state court's application of the standards was unreasonable.
“Rather than ‘grade counsel's performance', [a court should] limit itself to determining ‘whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process.'” Erdheim v. Greiner, 22 F.Supp.2d 291, 293 (S.D.N.Y. 1998) (quoting Strickland, 466 U.S. at 696; United States v. Aguirre, 912 F.2d 555, 561 (2d Cir. 1990)). The Second Circuit has opined that “counsel's failure to object to a jury instruction . . . constitutes unreasonably deficient performance only when the trial court's instruction contained ‘clear and previously identified errors.'” Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (quoting Bloomer v. United States, 162 F.3d 187, 193 (2d Cir. 1998)).
For a claim of ineffective assistance based on counsel's failure to object to a defective jury charge, the second part of the Strickland test requires a showing that the result of petitioner's trial would likely have been different had the appropriate objections been made. See Bligen v. Burge, No. 06-CV-1375 (CM) (HBP), 2008 WL 5336693, at *6 (S.D.N.Y. Oct. 20, 2008), adopted in part by 2008 WL 5351995 (Dec. 22, 2008); see also Cox v. Donnelly, 387 F.3d 193, 198 (2d Cir. 2004); Larrea v. Bennett, 368 F.3d 179, 183 (2d Cir. 2004). Alternatively, a petitioner can establish prejudice by demonstrating that, had a timely objection been made after which the trial court did not take corrective action, there is a reasonable likelihood that the state appellate court would have found the instruction to contain non-harmless error. See Bloomer, 162 F.3d at 193; see also Bouyea v. United States, 263 F.Supp.2d 403, 411 (D. Conn. 2003).
Although McTiernan has exhausted this claim by presenting it to each level of the state court, Brief For Defendant-Appellant at 47, the Appellate Division's decision did not explicitly mention ineffective assistance of counsel. The state court record reflects that McTiernan's counsel raised objections throughout the jury charge conference and did not hesitate to provide input during the trial. See, e.g., Tr. 1291-1310. McTiernan has therefore failed to rebut the “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
McTiernan's counsel argued to the Appellate Division that, “given that the error was so significant and important to the defense, the failure to preserve the issue is an obvious deviation from professional standards, and one that violated McTiernan's federal and state rights to effective assistance of counsel.” Brief For Defendant-Appellant at 47.
Other than his failure to raise objections following the jury charge, counsel did not engage in conduct outside “reasonable professional assistance.” Id. In fact, all indications demonstrate that McTiernan's counsel performed well above the requirements of Strickland-Garber engaged in many lengthy side bars during the trial, thoroughly questioned witnesses, drafted and filed all submissions to the state courts (and to this Court), and successfully argued to the jury that his client was not guilty of murder in the second degree or of criminal possession of a weapon in the third degree.
Courts have found that failure to object to a defective jury charge, when considered together with the trial court's multiple correct instructions, do not so prejudice the petitioner that relief on an ineffective assistance of counsel claim should be granted. See, e.g., Bligen, 2008 WL 5336693, at *8; Nelson v. Scully, 672 F.2d 266, 272 (2d Cir. 1982) (trial court's “emphatic, repeated and detailed” instructions mitigated the effects of the allegedly unconstitutional jury instruction). Even assuming that there was no strategic reason for counsel's failure to object at trial, it is unlikely that, as discussed supra, the jury would have reached a different outcome. See, e.g., Bennett v. United States, 663 F.3d 71, 88 (2d Cir. 2011) (finding petitioner could not meet prejudice prong of Strickland standard because had objections been made, he would likely have been convicted of the same counts). Therefore, because a different outcome would not likely have been reached, McTiernan has not demonstrated that she suffered prejudice in this instance.
As McTiernan has failed to meet the prejudice prong under Strickland, the Court need not engage in any other Strickland analysis. Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one.”). Accordingly, McTiernan's claim for relief based on ineffective assistance of trial counsel should be denied.
3. Cumulative Effect of Errors
Lastly, McTiernan cursorily argues that “[e]ven if trial errors do not individually require redress, their cumulative effect on the fairness of the trial can violate due process and warrant habeas relief.” Pet. at 30 (citing, inter alia, Taylor v. Kentucky, 436 U.S. 478, 488 n.15 (1978) (“[T]he cumulative effect of the potentially damaging circumstances of this case violated the due process guarantee of fundamental fairness”); see Lundy, 455 U.S. at 531 n.8 (habeas relief granted on “determination that the cumulative impact of the four alleged errors so infected the trial as to violate respondent's due process rights.”). She contends that “[e]ach error undermined her ability to have the[] defenses heard or understood by the jury” and that the “compounding nature of these errors surely violated McTiernan's due process right to a fair trial.” Pet. at 31.
McTiernan's argument is unconvincing. In Taylor v. Kentucky, the Supreme Court explained that the combination of “skeletal instructions,” together with “possible harmful inferences from . . . the indictment, and the repeated suggestions that petitioner's status as a defendant tended to establish his guilt” created a risk that the jury would convict petitioner “on the basis of those extraneous considerations, rather than on the evidence introduced at trial.” Taylor, 436 U.S. at 486, 487-88. These errors hold little similarity to the jury charge errors alleged in McTiernan's petition. Here, there is no cognizable claim for relief based on any of the three alleged jury charge errors, and therefore the cumulative effect of those claimed errors does not violate due process.
Because there is no meritorious claim upon which habeas relief should be granted, there can be no cumulation of errors, and this argument fails. The jury charge, when read as a whole, did not contain errors that would have led the jury to erroneously convict McTiernan in violation of her right to a fair trial and due process. See Cupp, 414 U.S. at 147. Because there is no indication in the record of jury confusion regarding the trial court's instructions and because the trial court correctly stated the legal standard both orally and in written instructions, there is inadequate support for the argument that a cumulation of jury charge errors and ineffective assistance of counsel rendered the outcome of McTiernan's trial unfair such that it violated her constitutional right to the due process of law. Therefore, her claim for relief on this ground should be denied as well.
III. CONCLUSION
For the foregoing reasons, McTiernan's petition for a writ of habeas corpus should be denied.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable John P. Cronan, United States Courthouse, 500 Pearl Street, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Cronan.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).