Opinion
02 Civ. 3778 (HB)
October 21, 2003
OPINION ORDER
Jin Wai ("Wai") pro se petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge the trial court's denial of his request to submit a jury instruction regarding manslaughter in the second degree. Magistrate Judge Debra Freeman recommended in a Report and Recommendation ("RR") that the Court deny the petition, and Wai timely filed objections to Magistrate Judge Freeman's R R. For the following reasons, the petition is dismissed and the RR affirmed.
I. BACKGROUND
Michelle Abruzzo, a fall 2003 intern in my Chambers and a third-year law student at New York Law School, provided substantial assistance in the research and drafting of this opinion.
Wai was convicted of weapons possession in the second and third degrees and murder in the second degree and is currently incarcerated at Sing Sing Correctional Facility where he is serving a sentence of twenty years to life. At approximately 11pm on July 4, 1991, Wai, a senior member of a faction of a Chinatown gang, confronted a rival faction of the same gang and asked the rival faction to leave the area. (See, e.g., Tr. III at 718, 796, 822, 859; Tr. V at 212, 320, 324, 330, 412, 415, 417). When the rival faction refused to leave, Wai fired two shots, one of which fatally struck in the head a female passenger in a passing sports utility vehicle. (Tr. III at 719-20, 799-800.)
On July 10, 1992, Wai was charged with one count of intentional second-degree murder, N.Y. Penal Law § 125.25(1); one count of depraved-indifference second-degree murder, id. § 125.25(2); one count of second-degree criminal possession of a weapon, id. § 265.03; and one count of third-degree criminal possession of a weapon, id. § 265.02(4).
Wai was tried before a jury in March and April 1996. This trial resulted in a mistrial when the jury was unable to reach a verdict on the murder charges. (Tr. IV at 1326, 1334-36.) In January and February 1998 Wai was re-tried on the murder charges. At the close of, the second trial, the court ruled that Wai was entitled to the charge of first-degree manslaughter as a lesser-included offense of intentional murder, but that he was not entitled to the charge of second-degree manslaughter as a lesser-included offense to depraved indifference murder, because the evidence did not support a finding that his actions were reckless, but not depraved. (Tr. V at 561-62, 616-17.) The jury convicted Wai on one count of second-degree murder under a theory of depraved indifference ( Id. at 992-93.)
On June 15, 1998, the trial court sentenced Wai to 20 years to life on his conviction of murder in the second degree (in addition to sentences for convictions on all weapons charges). Wai exhausted his state-court remedies, see People v. Wai, 283 A.D.2d 326 (1st Dep't 2001) (affirming the conviction), leave to appeal denied. People v. Wai, 96 N.Y.2d 920 (2001), and on April 16, 2002, Wai filed this habeas petition in which he claims the trial court's refusal to charge the jury with the lesser-included offense of manslaughter in the second degree denied him due process of law and a fair trial. (Pet. at ¶ 12; Pet. Mem. at 8.) On September 27, 2002, the matter was referred to Magistrate Judge Debra Freeman for an RR. On August 5, 2003, Judge Freeman issued an RR which recommended the petition be dismissed.
Judge Freeman determined that at the time of Wai's conviction, there was no constitutional requirement that a jury be instructed on a lesser-included offense in a non-capital case and therefore the denial of his request for a lesser-included offense was not contrary to, or did not involve an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Further, Judge Freeman determined that the Wai had not and could not prove by clear and convincing evidence that the trial court's findings were incorrect. Moreover, Judge Freeman concluded that Wai sought the application of a new constitutional rule, in violation of the rule that a court cannot announce new constitutional rules on collateral review, except in two narrow circumstances. See Teague v. Lane, 489 U.S. 288, 316 (1989); see also Mackey v. United States, 401 U.S. 667, 692-93 (1975)).
On September 8, 2003, Wai filed objections to Judge Freeman's RR. Wai objects to Judge Freeman's RR on the basis that the Supreme Court has not foreclosed the possibility that due process requires the submission of jury instructions of lesser-included offenses in non-capital cases. See Beck v. Alabama, 447 U.S. 625, 637-38, 638 n. 14 (1980) (holding that due process requires lesser-included-offense instructions in capital cases and noting that "[w]e need not and do not decide whether the Due Process Clause would require the giving of such instructions in a non-capital case."). Wai also argues that the failure of the trial court to instruct the jury on a lesser-included offense to second-degree homicide fits into the second exception identified in Teague and Mackey — namely, it implicates the fundamental fairness of his trial. Finally, Wai contends that there was clear and convincing evidence from the trial that he was merely reckless — specifically, there was testimony that he fired the gun when jostled by someone else, the first trial resulted in a deadlocked jury, and the jury in the second trial similarly had difficulty reaching a verdict.
II. DISCUSSION
A. Standard Of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court deciding a habeas corpus claim must presume a state court's factual finding to be correct. Scarola v. Kelley, No. 99-CV. 4704, 2001 WL 849449, at *2 (S.D.N.Y. July 27, 2001) (citing 28 § U.S.C. § 2254(e)(1)). Furthermore, the district court may not grant relief unless the court finds that the state court's adjudication of the claims either: (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 of the evidence presented in the state court proceedings. Scarola, 2001 WL 849449, at *2 (citing 28 U.S.C. § 2254(d)(1), (2) and Williams v. Taylor, 529 U.S. 362 (2000)). A state court decision is "contrary to" clearly established federal law where the state court either applies a rule that "contradicts the governing law" set forth in Supreme Court precedent, or "confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision" and arrives at a different result. See Williams, 529 U.S. at 405-06 (2000). A district court reviews de novo those portions of the record to which objections were made. See 28 U.S.C. § 636(b)(1). The district court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Wai's petition must be dismissed because the state court's adjudication neither resulted in a decision contrary to clearly established law, nor was based on an unreasonable determination of the facts.
The AEDPA § 2254(d) provides in relevant part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, (emphasis / added)
1. Unreasonable determination of the facts
As noted, Wai contends that there was clear and convincing evidence that he was entitled to a lesser-included-offense instruction because a jury could have reasonably concluded that he merely acted recklessly and not with depraved indifference. The evidence Wai relies on — the juries' difficulty in reaching verdicts and the testimony that his weapon discharged when he was jostled — fails to overcome the presumption of the correctness of the state court's determination that under "no reasonable view of the evidence, even when viewed most favorably to the defendant, that defendant was merely reckless but did not evince a depraved indifference to human life and create a grave risk of death to bystanders when he fired a gun on a crowded street corner." People v. Wai, 283 A.D.2d 326, 326 (1st Dep't 2001); see Garcia v. Keane, 973 F. Supp. 364, 368 (S.D.N.Y. 1997). As Judge Freeman noted — and Wai does not dispute — the evidenced at trial was that Wai twice fired his gun at an intersection crowded with pedestrians and vehicular traffic (see, e.g., Tr. III at 757, 8837, 861; Tr. V at 264). Wai has failed to present sufficient evidence to demonstrate that the trial court's determination was unreasonable.
2. Decision contrary to law
In Beck, upon which Wai relies, the Supreme Court held that a state statute that prevented the submission to the jury a charge of a lesser-included offense in a capital case where the evidence would have supported such a verdict violated due process. Beck, 447 U.S. at 627. In significant contrast, New York's criminal law prevents a trial court from submitting a lesser-included offense when "there is no reasonable view of the evidence which would support such a finding." Knapp v. Leonardo, 46 F.3d 170, 180 (2d Cir. 1995) (citing N.Y. Crim. Proc. Law § 300.50(1)). Under N.Y. law, a trial court may submit a lesser-included offense "if there is a reasonable view of the evidence which would support a finding that the defendant committed [a] lesser offense but did not commit the greater" Id. (emphasis in original); People v. Glover, 57 N.Y.2d 61, 63 (1982) (to establish entitlement to lesser-included offense charge, defendant must show that the additional offense is a "lesser-included offense" and that taking reasonable view of the evidence would lead to a conviction for a lesser but not greater offense); cf. Beck, 447 U.S. at 636. The Appellate Division affirmed the trial court's conclusion that Wai was not entitled to a lesser-included offense because the evidence did not support a finding that his actions were only reckless and not depraved. Neither the Supreme Court nor this Circuit has determined that constitutional due-process requires that a defendant in a non-capital case is entitled to a lesser included offense charge. Indeed, Wai concedes as much when he notes that the Supreme Court in Beck did not foreclose the possibility that due process requires such an instruction in non-capital cases. Indeed, while the Court noted that "the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard," it also pointed out that "we have never held that a defendant is entitled to a lesser-included-offense instruction as a matter of due process." Beck, 447 U.S. at 637. Thus, even assuming that the evidence warranted a lesser-included-offense instruction, the trial judge's decision to deny Wai's request for such an instruction was not "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States."
An "unreasonable application" of clearly established federal law occurs when the state court identifies the correct governing legal principle, but unreasonably applies that principle to the particular facts before it Williams v. Taylor, 529 U.S. 362 (2000). The Supreme Court has explained that "the most important point is that an unreasonable application of federal law is different from an incorrect application." Id. at 410. Accordingly, a habeas writ may not issue simply because the state court decision is erroneous or incorrect; rather, the application must also be found to be unreasonable. Id. at 411.
Closely related to the concept of a violation of a clearly established law, is the rule that a federal court cannot on collateral review announce a new rule of law, except in two narrowly confined situations. Wai's contention that this situation implicates a procedure that is "implicit in the concept of ordered liberty," Teague v. Lane, 489 U.S. 288, 290 (citing Mackey v. United States, 401 U.S. 667, 692 (1971), is unavailing. The Supreme Court held that new constitutional rules of criminal procedure should not be decided in cases on collateral review unless the new rule either places "certain kinds of primary individual conduct beyond the power of the criminal law-making authority to proscribe," or "requires the observance of those procedures that are implicit in the concept of ordered liberty." Teague, 489 U.S. at 307 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971)) (quotations and alterations in original omitted). With respect to the second of these — the exception Wai invokes — the Supreme Court held that it should be limited in scope to "those new procedures without which the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 313. Not only did the Supreme Court in Teague go to some lengths to explain that this exception is "reserved for watershed rules of criminal procedure," Teague, 489 U.S. at 311, but this Circuit has already determined that the very rule which Wai now urges is not such a "watershed" rule and thus the courts are precluded from granting habeas petitions for challenges to the failure to give a lesser-included offense charge in a non-capital case. See Jones v. Hoffman, 86 F.3d 46, 46 (2d Cir. 1996) ("Since a decision interpreting the Constitution to require the submission of instructions on lesser-included offenses in non-capital cases would involve the announcement of a new rule, we hold that Teague precludes our consideration of the issue.").
Significant too was the Court's concern about retroactivity. See Teague, 489 U.S. at 316 ("We therefore hold that, implicit in the retroactivity approach we adopt today, is the principle that habeas 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 through one of the two exceptions we have articulated.").
III. CONCLUSION
For the foregoing reasons, Wai's habeas corpus petition pursuant to 28 U.S.C. § 2254 is denied and the petition is dismissed. The Clerk of the Clerk is instructed to close this case and remove it from my docket. Because Wai has not made a substantial showing of the denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253.IT IS SO ORDERED.