Gibbs v. Donnelly

10-0060-pr Gibbs v. Donnelly UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED WITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, 3 on the 22nd day of November, two thousand and ten. 4 5 PRESENT: 6 7 AMALYA L. KEARSE, 8 JOSEPH M. MCLAUGHLIN, 9 DEBRA ANN LIVINGSTON, 10 11 Circuit Judges. 12 13 _______________________________________________ 14 15 DOMINIC GIBBS, 16 17 Petitioner-Appellant, 18 19 v. No. 10-0060-pr 20 21 EDWARD DONNELLY, Superintendent, 22 23 Respondent-Appellee. 24 ______________________________________________ 25 26 27 HILLARY K. GREEN , Federal Public Defender, Buffalo, New 28 York, for Petitioner-Appellant. 29 30 1 1 GEOFFREY KAEUPER, Assistant District Attorney for 2 Monroe County, Michael C. Green, District Attorney for 3 Monroe County, Rochester, New York, for Respondent- 4 Appellee. 5 6 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED 7 that the judgment of the district court be AFFIRMED. 8 Petitioner-Appellant Dominic Gibbs (“Gibbs”) appeals from a December 8, 2009 judgment 9 of the United States District Court for the Western District of New York (Arcara, J.), denying his 10 petition for a writ of habeas corpus, see 28 U.S.C. § 2254. Gibbs challenges his conviction on one 11 count of second degree (intentional) murder, N.Y. Penal Law §§ 20.00, 125.25(1), in New York 12 Supreme Court, Monroe County. Gibbs was convicted as an accomplice and sentenced to the 13 statutory maximum term of 25 years to life in prison. On direct appeal, the Appellate Division 14 affirmed Gibbs’s conviction on September 28, 2001, and the New York Court of Appeals denied 15 leave to appeal on January 15, 2002. People v. Gibbs, 286 A.D.2d 865 (N.Y. App. Div. 4th Dep’t 16 2001), lv. denied, 97 N.Y.2d 704 (N.Y. 2002). The district court granted a Certificate of 17 Appealability on the issue of “whether the trial court’s denial of a jury instruction on self-defense 18 or justification amounted to a violation of petitioner’s federal constitutional rights.” We assume the 19 parties’ familiarity with the underlying facts and procedural history. 20 We review a district court’s denial of a petition for habeas corpus de novo, and its factual 21 findings for clear error. Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir. 2007); Anderson v. Miller, 22 346 F.3d 315, 324 (2d Cir. 2003). Because Gibbs challenges a claim adjudicated on the merits in 23 state court, we apply the deferential standard of review codified in the Antiterrorism and Effective 24 Death Penalty Act of 1996, 28 U.S.C. § 2254(d) (“AEDPA”). See Dolphy v. Mantello, 552 F.3d 236, 2 1 238 (2d Cir. 2009). Under AEDPA, a federal court may grant a writ of habeas corpus to a state 2 prisoner on a claim that was adjudicated on the merits in state court only if the state court’s decision 3 was “contrary to, or involved an unreasonable application of, clearly established Federal law, as 4 determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Dolphy, 552 F.3d 5 at 238. The state court’s application of clearly established law “must be objectively unreasonable,” 6 not merely incorrect or erroneous. Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The Supreme Court 7 has instructed that this is “a substantially higher threshold” than mere error. Schriro v. Landrigan, 8 550 U.S. 465, 473 (2007). 9 Gibbs argues that the state trial court violated his due process rights by denying him a jury 10 instruction on “vicarious” justification. In Cupp v. Naughten, 414 U.S. 141 (1973), the Supreme 11 Court held that a federal court may overturn a state court conviction on the ground of an erroneous 12 instruction only where the instruction complained of “so infected the entire trial that the resulting 13 conviction violates due process.” Id. at 147. Consistent with Cupp, we have held that “[i]n order 14 to obtain a writ of habeas corpus in federal court on the ground of error in a state court’s instructions 15 to the jury on matters of state law, the petitioner must show not only that the instruction misstated 16 state law but also that the error violated a right guaranteed to him by federal law.” Davis v. Strack, 17 270 F.3d 111, 123 (2d Cir. 2001) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)); see 18 also Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990) (“A mere error of state law does not deny 19 a defendant his right to due process.”). 20 We note at the outset that both parties, as well as the state and district courts, concur that 21 there are no published cases suggesting that a defendant charged as an accomplice under New York 22 law may claim self-defense where the alleged principal applied deadly physical force. Even 3 1 assuming that state law entitled Gibbs to a “vicarious” justification instruction of the sort he urges, 2 however, we nevertheless agree with the district court that the failure to give such instruction did not 3 result in a denial of due process. 4 We have declined to find a violation of due process where a justification charge would not 5 have affected the jury’s verdict. Blazic, 900 F.2d at 542-43. In Blazic, we acknowledged that New 6 York law requires a jury to “determine[ whether] the People have established all of the elements of 7 the crime [charged],” and upon such determination, to “then turn to consider his defense known in 8 law as ‘justification.’” Id. at 542 n.4 (quoting 1 Criminal Jury Instructions, New York 867 (1983)) 9 (emphasis in Blazic) (internal quotation marks omitted). We then noted that a jury “would have had 10 to reject significant aspects of” the defendant’s testimony “to find that the prosecution met its 11 burden” of establishing all the elements of the crime. Id. at 543. From these observations, we 12 concluded that “if a jury rejected the majority of [the defendant’s] testimony, a justification charge 13 would not have affected the jury’s verdict since his testimony was the only evidence supporting a 14 justification claim.” Id. 15 Gibbs’s testimony was the only evidence that even arguably supported a justification defense 16 as to the alleged principal here. The jury, however, necessarily rejected Gibbs’s version of the events 17 in determining he was guilty as an accomplice to the crime of second degree murder. A “vicarious” 18 justification charge would thus not have changed the jury’s verdict. Moreover, even if the jury were 19 to have assumed the truth of Gibbs’s testimony, Gibbs’s account of the moments just before the 20 shooting was merely that he heard some arguing and then a “pop.” Under these circumstances, we 21 find that the state trial court’s refusal to grant a “vicarious” jury instruction did not deprive Gibbs 22 of a “highly credible defense” on which he had a “significant possibility of prevailing.” Davis, 270 4 1 F.3d at 131-32. 2 Alternatively, Gibbs argues that he was entitled to an ordinary justification instruction, on 3 the theory that he himself committed a deadly act in self-defense. Gibbs, however, never requested 4 such an instruction at trial and raises this argument for the first time on appeal from the denial of 5 habeas relief. It is therefore not properly before this Court. See Teague v. Lane, 489 U.S. 288, 308 6 (1989); see also N.Y. Crim. Proc. Law §§ 440.10(2)(c), 470.05(2); People v. Cuadrado, 9 N.Y.3d 7 362, 364-65 (N.Y. 2007); People v. Cona, 49 N.Y.2d 26, 33 (N.Y. 1979). 8 We have considered all of Gibbs’s contentions on appeal and find them to be without merit. 9 For the foregoing reasons, the judgment of the district court is AFFIRMED. 10 11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13 5