10-795-cv
Harris v. Fischer
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 9th day of September, two thousand eleven.
PRESENT:
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
EDWARD R. KORMAN,
District Judge.*
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ANTONIO HARRIS,
Petitioner-Appellant,
-v.- 10-795-cv
BRIAN FISCHER, WARDEN,
Respondent-Appellee.
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*
The Honorable Edward R. Korman, of the United States
District Court for the Eastern District of New York, sitting by
designation.
FOR PETITIONER-APPELLANT: ANDREW M. ST. LAURENT, Harris,
Cutler & Houghteling LLP, New York,
New York.
FOR RESPONDENT-APPELLEE: DONNA A. MILLING, Assistant
District Attorney, for Frank A.
Sedita, III, District Attorney of
Erie County, Buffalo, New York.
Appeal from the United States District Court for the
Western District of New York (Telesca, J.). UPON DUE
CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the judgment of the district court is AFFIRMED.
Appellant Antonio Harris appeals from a judgment of the
district court, dated February 19, 2010, denying his petition for
a writ of habeas pursuant to 28 U.S.C. § 2254. On August 7,
1998, Harris and two others attempted to collect a debt from
Michael Organek, during which one of Harris's companions stabbed
Organek in the eye with a hollow metal rod, resulting in his
death four days later. In January 1999, Harris was charged with
four counts of murder in the second degree, one count of
attempted robbery in the first degree, one count of burglary in
the first degree, one count of criminal possession of a weapon in
the fourth degree, and criminal possession of a controlled
substance in the third degree. The murder counts consisted of
one count of intentional murder, one count of depraved
indifference murder, and two counts of felony-murder. After a
jury trial in Erie County, Harris was found guilty of all charges
except the intentional murder charge, as to which he was
acquitted.
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Prior to sentencing, Harris moved to set aside the
verdict pursuant to New York Criminal Procedure Law § 330.30,
alleging that the evidence was insufficient to sustain the
verdict. The trial court granted the motion in part on October
20, 1999, setting aside Harris's convictions for depraved
indifference murder, weapon possession, and possession of a
controlled substance. On October 28, 1999, Harris was sentenced
to concurrent, indeterminate terms of imprisonment of twenty
years to life on each of the two felony-murder counts, seven and
a half to fifteen years for the attempted robbery conviction, and
twelve and a half to twenty-five years for the burglary
conviction. On direct appeal, the Appellate Division affirmed.
People v. Harris, 767 N.Y.S.2d 347 (4th Dep't 2003), leave to
appeal denied, 2 N.Y.3d 740 (2004).1
On March 11, 2005, Harris filed the § 2254 petition
below, challenging his conviction on four grounds: ineffective
assistance of counsel; prosecutorial misconduct (including a
Batson claim); insufficiency of evidence to support the robbery
and burglary convictions; and establishment of an affirmative
defense to felony-murder. The district court rejected Harris's
Batson argument on the merits and held that his remaining
arguments were procedurally defaulted. On appeal, Harris
challenges only the district court's denial of his claim with
respect to his affirmative defense.
1
Harris also moved to vacate his conviction pursuant to
New York Criminal Procedure Law § 440.10, twice, on December 11,
2003 and February 15, 2005. Both motions were denied.
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This Court reviews the denial of a petition for a writ
of habeas corpus de novo. Ortiz v. N.Y.S. Parole in Bronx, N.Y.,
586 F.3d 149, 155 (2d Cir. 2009). Under § 2254's exhaustion
requirement, 28 U.S.C. § 2254(b), (c), each argument advanced in
a federal habeas petition must first have been exhausted through
state remedies -- that is, presented to the state's highest
court, Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005). The
petitioner must have "fairly apprised" the state court of the
factual and legal premises of the federal constitutional claim.
Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). In New York, a
defendant seeking further appeal in a criminal case must apply
for leave to appeal by letter application to the Court of
Appeals. N.Y. Court Rules § 500.10(a) (current version at N.Y.
Court Rules § 500.20(a) (2005)). The district court held below
that Harris procedurally defaulted his affirmative defense claim
because he insufficiently alerted the Court of Appeals to the
claim in his letter application.
We have previously held that if a defendant's leave
application presents his claims in such a way that "eliminate[s]
issues as to which review had been expressly requested," Morgan
v. Bennett, 204 F.3d 360, 371 (2d Cir.), cert. denied, 531 U.S.
819 (2000), those issues are procedurally defaulted and cannot be
asserted in a subsequent federal habeas petition. On the other
hand, if a defendant's leave application "clearly state[s] that
he [is] pressing all of the claims raised in [an] attached
[Appellate Division] brief," the Court of Appeals is considered
to have been fairly apprised of all of those claims. Jordan v.
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Lefevre, 206 F.3d 196, 199 (2d Cir. 2000). We have found such a
clear statement within a leave application that briefly but
"expressly