Simpson v. Bell

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CEDRIC SIMPSON,

Petitioner,

– against – MEMORANDUM & ORDER

EARL BELL, 18-cv-1378 (ERK)

Respondent.

KORMAN, J.:

I. BACKGROUND

Petitioner Cedric Simpson stabbed his unarmed friend Carl Richardson to

death with a pair of scissors after the two had a dispute over $30. Richardson, who

was 19 at the time, came to the barbershop petitioner owned, and at which petitioner

also worked, to collect the money that Richardson believed petitioner owed him for

a pair of headphones. ECF No. 11-2 at 324, 338.1 Despite the fact that petitioner

was fifteen years older than Richardson, the two were friends, had known each other

for some time, and had never had any disagreements before. Id. at 336, 338. This

time, however, Richardson and petitioner disagreed about how much money

petitioner still owed for the headphones. Id. at 323–24. Richardson picked up

petitioner’s iPad, told petitioner that he would hold onto it until he received his

1 All citations to the record are to the page number in the ECF header, not the

internal pagination of the document.

money, and left the barbershop to return to his car, which was parked around the

corner and down the block. Id. at 324–25. Petitioner followed, attempting to

persuade Richardson to return his iPad. Id. at 325.

Their interaction on the way back to Richardson’s car was captured by two

different security cameras.2 While the two initially appeared friendly, with petitioner

placing his arm on Richardson’s shoulder, the encounter soon turned hostile.

Petitioner grabbed Richardson’s arm and was angrily slapped away. When

Richardson walked back to his car and tried to get in, petitioner physically blocked

the door and pushed Richardson back. The two argued next to Richardson’s car for

some time, gesturing animatedly.

At one point, they appeared to agree to return to the barbershop. After a few

steps in that direction, Richardson turned around and went back to his car. Petitioner

jogged back after him and again pushed Richardson, who deflected him with his

forearm. Richardson then began opening his jacket as the camera momentarily lost

sight of him. Petitioner later testified that in the moment Richardson was off-camera,

Richardson reached toward his waist as if for a weapon and asked “what you want

me to do? Kill you for my money[?]” ECF No. 11-2 at 325. Back on camera, the

video showed that Richardson had not removed a weapon from his waist. Instead,

2 The jury viewed this footage—which did not include sound—at trial. The

district attorney provided a copy of the footage, which I have reviewed.

Richardson reached for the door handle of his car and petitioner grabbed

Richardson’s hand and pushed him away from the door. Richardson then shoved

petitioner back from the car, appeared to make contact with petitioner’s face, and

pushed him a second time back onto the sidewalk. Petitioner turned and fled back

to the barbershop with Richardson in pursuit. Significantly, petitioner never claimed

that he actually saw Richardson holding a weapon, at this or any subsequent time.

A. Petitioner Stabs Richardson in the Barbershop

Because petitioner stabbed Richardson to death and none of the six to nine

customers in the barbershop “wanted to help” the police investigation, the only

testimony about the events was from two barbers who were working at the shop—

whom the prosecutors were forced to call—and the testimony of the petitioner. ECF

No. 11-1 at 436-37. The first was Sheldon Hunter, who was petitioner’s nephew,

lived in a home owned by petitioner before and after the incident, and got his job

through petitioner, who owned the barbershop and rented Hunter his chair. ECF No.

11-2 at 178-82. Hunter saw petitioner and Richardson “running in the shop” after

their altercation. /d. at 186. At first, Hunter thought the two were just “joking” or

“playing.” Jd. Hunter saw Richardson put petitioner in a “bear hug” near

petitioner’s station. /d. Hunter demonstrated Richardson’s hold at the trial, which

the trial court described for the record as “standing up, using both arms, and he

folded them over, and he is grabbing the upper arms, the pectoral muscles, of each

of his respective arms.” Jd. at 187. Petitioner then “tried to wrestle out of

[Richardson’s] hands” and the two “continue[d] to the back of the shop” while

“moving side to side.” Id. at 190. Hunter saw a pair of scissors in petitioner’s hand

as he tried to wrestle out of the bear hug. Id. at 194. Hunter went to the front of the

shop to calm down his customer—who had left the chair when the fighting started—

and by the time he turned his attention back to petitioner and Richardson, their

altercation was over and Richardson was bleeding to death. Id. at 192. Hunter

claimed he did not see petitioner stab Richardson.

The other barber who testified was John Reid, to whom petitioner rented a

chair at the barbershop. Reid saw Richardson and petitioner run back into the

barbershop. ECF No. 11-2 at 141. Petitioner returned to his barber station before

Richardson put him in a “bear hug” from behind. Id. at 142. Reid testified that

Richardson’s arms were “wrapped around” petitioner, over the latter’s arms. Id. As

a result, petitioner’s arms were “locked down” and he could not move them. Id. at

142–43. Richardson and petitioner were “fumbling” and “everybody [was] moving”

and “trying to get them apart.” Id. at 143. Reid saw that “everybody’s hands [was]

movin’ around” and petitioner had “scissors in his hands.” Id. at 145. When Reid

and others managed to separate the two, he saw that the scissors in petitioner’s hand

were bloody and that Richardson had blood on him. Id. at 146. Like Hunter, Reid

claimed that he did not see the stabbing. Id. at 148.

After Hunter and Reid, petitioner testified on his own behalf. He claimed that

Richardson acted “crazy” when they were outside, and that he fled back to the

barbershop because he knew it was “much safer inside there.” ECF No. 11-2 at 325.

Petitioner said that when he got back in the shop, Richardson “pounce[d] on

me . . . Grab me from behind trying to put me on the ground. I just want to get out

of his hand.” Id. at 326. Richardson grabbed petitioner and “swung [him] to the

right,” Id. Petitioner testified that he tried to grab onto his barber station, causing

items on the station to fall to the ground as the two were “tussling, tussling” and

petitioner was “try[ing] to get out of his hand.” Id. Petitioner then said that he

grabbed a pair of scissors remaining on his station, presumably with his free hand,

as he and Richardson were “fighting back and forth with him trying to grab me

down.” Id.

The exact sequence of events during the fight was unclear from petitioner’s

testimony. Petitioner testified that Richardson actually grabbed him “two time[s] in

the barbershop”—“one of the time[s] when I reach the station and grab the scissors

and he come back over and grab me again.” ECF No. 11-2 at 365. Petitioner claimed

that during one of these periods, Richardson grabbed him “underneath” his arms

rather than locking them to his sides as Reid and Hunter testified, which would

presumably have left his hands free to stab Richardson. Id. at 364–65. Petitioner

also claimed that Richardson “tried to hold me in between [] two chairs.” Id. at 327.

Then, petitioner said “I don’t know how I get so strong, but I get up back on my feet.

I balance up myself. I come to the middle of the shop fighting, going down to the

back of the shop.” Id.

As Richardson was holding him down “trying to drop [him] down on the

floor,” petitioner swung the scissors three times because he “want[ed] to get away

from [Richardson].” Id. Although expert testimony established that Richardson’s

fatal wound was very slightly to the left of the middle of his chest between the second

and third ribs, petitioner claimed that he only swung his “hands three times over my

shoulder and under my arm” while Richardson was behind him, and that he did not

know if he had stabbed Richardson because “[w]hen you stab somebody, you go in

front of somebody and stab them. I didn’t do that.” Id. at 335.3 Petitioner claimed

that he was “scared for [his] life” as the fight unfolded and that all he wanted to go

was “get away.” Id. at 329. He also claimed that he thought Richardson “had a

weapon in his hands,” but he never testified that he actually saw a weapon, even

though he would easily have been able to see anything in Richardson’s hands when

they were wrapped around him. Id. at 362–63. Instead, he claimed that he only

learned that Richardson was unarmed after stabbing him. Id.

3 Indeed, not only did petitioner suggest that he did not know he had stabbed

Richardson—this argument was also made by his attorney in his summation. ECF

No. 11-2 at 415–18. And yet there was never any doubt that petitioner stabbed

Richardson.

Richardson initially appeared not to realize how serious his wounds were.

Reid testified that after the two were separated, Richardson was “[j]ust walking

around” the shop. ECF No. 11-2 at 149. At some point Richardson put his hand on

petitioner’s shoulder and said something like “you’re going to kill me for like $80?”

Id. Petitioner responded that Richardson should “just chill” before leaving to

retrieve his iPad. Id. at 150. The video footage from this time shows petitioner

calmly jogging back to Richardson’s car and picking up the tablet from where

Richardson had dropped it during their initial confrontation. Back inside,

Richardson lifted up his shirt and Reid and Hunter saw that he was bleeding. Id. at

151, 196. Richardson said that he did not “want to die” and asked those present to

“pray for me” before falling down on the barbershop’s waiting bench. Id. at 151.

The petitioner then came back in and asked Richardson if he wanted to go to the

hospital. Id. at 153. Ultimately, Richardson dialed 911 because he thought “he [was]

going to die” and handed the phone to Hunter. Id. at 196–97. Reid separately called

911. Id. at 153. While paramedics transported Richardson to the hospital and

unsuccessfully attempted to save his life, video footage showed that petitioner was

walking into a bodega next door, calmly browsing the shelves and chatting with

other customers.

Petitioner was eventually arrested after he returned to the barbershop and Reid

pointed him out to police. ECF Nos. 11-1 at 404; 11-2 at 157. As an officer was

placing petitioner in his car, petitioner volunteered that “I stabbed him because he

was trying to attack me.” ECF No. 11-1 at 440. After he was read his Miranda

rights, petitioner told a detective that “Richardson put him in a hug so he grabbed

the pair of scissors to get him off.” ECF No. 11-2 at 79. The detective then

demonstrated the motion petitioner made in the interview by moving his right hand

“in an up and down manner in front of him . . . [i]n a striking motion.” Id.

At trial in January 2015, the medical examiner testified that Richardson

received four wounds: two on the “neck on his left side close to the base of the neck,”

one to the chest, and the last “[o]n his left side of the upper back in the area where,

roughly in the area where the arm joins the torso.” ECF No. 11-2 at 234–35. The

two wounds on the neck resulted from a single stabbing motion of the two blades of

an open pair of scissors. Id. at 250. The medical examiner placed the fatal wound

“very slightly to the decedent’s left of the midline,” which she described as “an

imaginary line that goes through the center of our body.” Id. at 235. She also stated

that the “course and direction” of the fatal wound was “oriented from decedent’s

front to back, from his left to right and downwards,” with the scissors entering

“through the second intercostal space,” which falls between the second and third

rib.4 ECF No. 11-2 at 240–41.

4 Intercostal spaces are spaces between the ribs and are numbered by adjoining

rib. For a diagram, see Danuel V. Laan et al., Chest Wall Thickness and

Decompression Failure: A Systematic Review and Meta-analysis Comparing

Anatomic Locations in Needle Thoracostomy 47 INJURY 797 (2016).

At the close of the prosecutor’s case, petitioner’s counsel unsuccessfully

moved for an order of dismissal on the ground that the prosecution had failed to

show “that there was an intent to kill,” ECF No. 11-2 at 315—an essential element

of the only homicide charge in the indictment. After petitioner testified as described

above, petitioner’s counsel again moved for an order of dismissal because no

“reasonable jury could infer that [petitioner] intended to kill [Richardson]” and the

prosecution had “not proven each and every element of the crime.” Id. at 381. The

trial court again denied the motion. Id.

The trial court instructed the jury on the elements of murder in the second

degree (causing death with intent to kill) and the lesser-included crimes of

manslaughter in the first degree (causing death with intent to cause serious physical

injury) and second degree (recklessly causing death). Petitioner’s trial counsel

opposed the first-degree manslaughter instruction but stated that he “would accept”

second-degree manslaughter as a lesser-included charge. ECF No. 11-2 at 395. The

instructions for each substantive homicide offense listed lack of justification as one

of the elements that the prosecution had to prove beyond a reasonable doubt. Id. at

471, 473, 475. Consistent with the criminal pattern jury instructions, the trial court

also effectively restated the justification element in each of the three homicide

charges, telling the jury that “if you find that the [prosecution has] failed to prove

beyond a reasonable doubt that the [petitioner] was not justified, then you must find

the [petitioner] not guilty of murder in the second degree and/or manslaughter in the

first and second degrees.” Id. at 467.

During deliberations, the jury sent the trial court a note asking for “[t]he legal

definition of self-defense.” ECF No. 11-3 at 9. The trial court told the jury that

“[w]ith respect to count one and the lesser included offense of manslaughter in the

first and second degrees [petitioner] has raised the defense of justification also

known as self-defense.” Id. at 10. It then repeated the justification instructions

(described above) in full. Id. at 10–14. The jury returned a verdict of not guilty on

the murder count and guilty on first-degree manslaughter and a related count of

criminal possession of a weapon in the fourth degree (a count that is not at issue

here). Id. at 15. Petitioner was sentenced principally to 19 years on the manslaughter

count and one year on the criminal possession count to run concurrently. Id. at 44.

Petitioner’s counsel raised three grounds on direct appeal. First, he argued

that the evidence was insufficient to support his manslaughter conviction or disprove

his justification defense and that the verdict was against the weight of the evidence.

Next, he claimed the prosecutor improperly commented on his justification defense

and pre-arrest silence during closing. Finally, he contended that his sentence was

excessive.

The Appellate Division agreed with the argument of petitioner’s counsel that

the sentence was excessive and reduced it from 19 to 15 years, which was within the

range that petitioner could have received if he had been convicted of the lesser

offense of manslaughter in the second degree. People v. Simpson, 151 A.D.3d 762,

762 (2d Dep’t 2017), leave denied 30 N.Y.3d 1063 (2017); see N.Y. Penal L.

§§ 70.00(2)(c), 125.15. The Appellate Division, however, held that petitioner had

“failed to preserve for appellate review his contention that [the prosecution] failed

to disprove the defense of justification,” but that, in any event, the evidence was

sufficient to disprove justification and to prove petitioner’s intent to inflict serious

physical injury. 151 A.D.3d at 762–63. While holding that some of the prosecutor’s

comments were improper, it held that the trial judge’s instructions cured some of the

defects and that the others were not sufficiently egregious to deprive petitioner of

his right to a fair trial. Id. at 763.

Petitioner pursued two coram nobis petitions. In the first, he argued that

appellate counsel was ineffective for failing to argue that the evidence was

insufficient to prove his intent to inflict serious physical injury or that trial counsel

was ineffective for failing to preserve the issue. The Appellate Division denied the

petition. People v. Simpson, 164 A.D.3d 1477 (2d Dep’t 2018), leave denied 32

N.Y.3d 1115 (2018).

In petitioner’s second coram nobis, he argued that appellate counsel was

ineffective for failing to argue that the trial court should have instructed the jury to

stop deliberating if it found him not guilty of the murder charge because the

prosecution had failed to disprove justification, or that trial counsel was ineffective

for failing to object to the justification instruction. Petitioner also claimed that

appellate counsel should have argued that (1) the trial court erred by refusing to give

a separate instruction on justification that his trial counsel requested, and (2) he was

actually innocent of manslaughter because (he claims) the jury must have acquitted

him of murder on justification grounds. The Appellate Division again denied relief.

People v. Simpson, 174 A.D.3d 825 (2d Dep’t 2019), leave denied 34 N.Y.3d 984

(2019).

I. DISCUSSION

A. Ineffective Assistance of Counsel

Petitioner’s ineffective assistance of counsel claims are analyzed under

Strickland v. Washington, 466 U.S. 668 (1984), which places the burden on petitioner

to demonstrate (1) that his counsel’s representation “fell below an objective standard

of reasonableness,” and (2) “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” /d. at 688, 694; Smith v. Robbins, 528 U.S. 259, 285 (2000). Indeed,

“Tb]ecause the Strickland standard is a general standard,” after AEDPA “a state court

has even more latitude to reasonably determine that a defendant has not” established

that he has received the ineffective assistance of counsel. Shinn v. Kayer, 141 S. Ct.

517, 523 (2020) (per curiam) (internal quotation omitted). The shorthand is “double

deference”: first, the deference owed under the Strickland standard, and the second

owed to the state-court decision under AEDPA.

12

All of petitioner’s ineffective assistance claims were raised in his two coram

nobis petitions. The Appellate Division rejected those claims in two separate

opinions, see 174 A.D.3d at 825 & 164 A.D.3d at 1477, with a citation in each to

Jones v. Barnes, 463 U.S. 745 (1983), the “most relevant Supreme Court case

governing ineffective assistance of appellate counsel,” Chrysler v. Guiney, 806 F.3d

104, 117 (2d Cir. 2015), although it did not specifically analyze the facts under the

Barnes standard. Nevertheless, the Appellate Division’s application of Barnes is

owed considerable deference under AEDPA. Id. at 117–18.

In applying that deferential standard, the Supreme Court has held that

appellate counsel has no duty to raise every non-frivolous issue. Barnes, 463 U.S.

at 751. “Experienced advocates since time beyond memory have emphasized the

importance of winnowing out weaker arguments on appeal and focusing on one

central issue if possible, or at most on a few key issues.” Id. at 751–52. Reviewing

courts “may not use hindsight to second-guess” appellate counsel’s strategic choices.

Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). “[C]hallenges to appellate

counsel’s effectiveness are viewed in light of the law existing at the time counsel

was required to file the brief on appeal.” Sellan v. Kuhlman, 261 F.3d 303, 315 (2d

Cir. 2001). “Counsel is not required to forecast changes in the governing law.”

Mayo, 13 F.3d at 533. Courts must apply “a strong presumption that counsel’s

representation was within the wide range of reasonable professional assistance.”

Chrysler, 806 F.3d at 123 (internal quotations omitted). And even if the performance

of counsel is found to be deficient under this deferential standard of review, a

defendant may obtain relief only if there is “a reasonable probability that his claim

would have been successful” in overturning the conviction or otherwise obtaining

meaningful relief. Mayo, 13 F.3d at 534 (internal quotation omitted).

1. “Stop Deliberations” Charge

Petitioner claims that appellate counsel should have argued that he was

entitled to a “stop deliberations” charge instructing jurors not to consider lesser

homicide counts if they acquitted petitioner of murder on justification grounds. The

New York Court of Appeals has not yet addressed whether such an instruction is

required under state law. Some, but not all, of the Appellate Divisions have required

(at one time or another) an added instruction that an acquittal of the top count on

justification grounds precludes consideration of lesser-included offenses.

Nevertheless, there is a significant split between the Departments as to the necessity

of such a charge,5 and a dispute even within Departments that recognize it about

whether to apply it, which is discussed below.6

5 Compare People v. Daniels, 174 A.D.3d 955, 957–58 (3d Dep’t 2019)

(reversing a conviction based on failure to give a stop-deliberation instruction), leave

denied 34 N.Y.3d 950 (2019); with People v. Bolling, 24 A.D.3d 1195, 1196–97 (4th

Dep’t 2005) (rejecting such a rule), aff’d on other grounds 7 N.Y.3d 874 (2006).

6 Compare People v. Velez, 131 A.D.3d 129, 133–34 (1st Dep’t 2015)

(reversing a conviction in the interest of justice based on the trial court’s failure to

give a stop-deliberation instruction) with People v. Macon, 186 A.D.3d 430, 431 (1st

Dep’t 2020) (holding exactly the opposite while recognizing that it had “changed

a. The Availability of Habeas Review for State-Court Errors

The threshold issue here is whether petitioner can pursue an ineffective

assistance claim under AEDPA based on his counsel’s alleged failure to challenge

errors of state law, where the state-law errors do not rise to the level of an

independent federal constitutional claim. The two leading Second Circuit cases that

address this question were decided before AEDPA and answered it in the affirmative.

See Claudio v. Scully, 982 F.2d 798 (2d Cir. 1992); Mayo v. Henderson, 13 F.3d 528

(2d Cir. 1994).

In Claudio v. Scully, the Second Circuit held that counsel’s “failure to raise a

meritorious state law claim” could violate the Sixth Amendment. 982 F.2d 798, 803

n.5 (2d Cir. 1992). As Judge Jon Newman observed in the course of his dissent, that

was “a significant ruling, not yet made by the Supreme Court, nor by any prior

decision of this Court” and was “not free from doubt.” Id. at 807–08. As he

explained, “[i]t is arguable that the federal guarantee of effective assistance of

course” and no longer applied the rule in Velez), leave denied 35 N.Y.3d 1114 (2020);

but see People v. Herrera 193 A.D.3d 189, 192–93 & n.* (1st Dep’t 2021) (reversing

conviction in the interest of justice based on failure to give stop-deliberations

instruction under Velez). Compare also People v. Feuer, 11 A.D.3d 633, 634–35 (2d

Dep’t 2004) (reversing a conviction in the interest of justice based on failure to give

stop-deliberation instruction) with People v. Palmer, 34 A.D.3d 701, 703 (2d Dep’t

2006) (concluding that the Feuer rule was “served by charging in accordance with

the [criminal] pattern jury instructions, which require that the absence of justification

be made a specific element of each of the submitted charges”) (emphasis in original),

leave denied 8 N.Y.3d 848 (2007) and People v. Brooks, 71 A.D.3d 1043 (2d Dep’t

2010) (applying Palmer), leave denied 16 N.Y.3d 828 (2011).

counsel, whether protected by the Sixth Amendment through the Due Process Clause

or directly by that Clause, assures state court defendants only effective assistance of

counsel in enforcing the protections of federal law, leaving entirely to the states all

questions as to whether counsel’s performance was adequate to assure vindication

of state law protections.” Id. at 807–08. Shortly thereafter, in Mayo v. Henderson,

the Second Circuit followed Claudio and held that “[t]he claim whose omission

forms the basis of an ineffective assistance claim may be either a federal-law or a

state-law claim,” so long as the failure to raise the state claim “fell outside the wide

range of professionally competent assistance.” 13 F.3d at 533.

The Second Circuit has continued to apply these cases on habeas review after

the passage of AEDPA notwithstanding the Supreme Court’s repeated admonition

that only its holdings, and not those of the Courts of Appeals, can create clearly

established law. Thus, in Carey v. Musladin, the Supreme Court observed that “[n]o

holding of this Court required the [state] Court of Appeal to apply the test of [prior

holdings to the] conduct [relevant] here. Therefore, the state court’s decision was

not contrary to or an unreasonable application of clearly established federal law.”

549 U.S. 70, 77 (2006). Similarly, in Rodriguez v. Miller, the Second Circuit made

it clear that “[n]o principle of constitutional law grounded solely in the holdings of

the various courts of appeals or even in the dicta of the Supreme Court can provide

the basis for habeas relief.” 537 F.3d 102, 106–07 (2d Cir. 2008).

Thus, even if Claudio and its progeny continue to state the law of this Circuit,

they should not be applied after AEDPA because the Supreme Court has not held

that counsel can be ineffective for failing to challenge state-law errors. And Judge

Jon Newman regarded this as a serious issue for which there was no Supreme Court

precedent. 982 F.2d at 807–08. Indeed, the Second Circuit has held that, even when

it has construed the Constitution in a particular way “as a matter of federal law in

this circuit,” it nonetheless “seems likely that under the AEDPA, a state court” that

charted a different path would be applying Supreme Court law “in a perfectly

reasonable way.” Kennaugh v. Miller, 289 F.3d 36, 47–48 (2d Cir. 2002).7

Under these circumstances, it would be passing strange to grant habeas relief

based on counsel’s failure to challenge errors of state law when the same conduct

would not violate petitioner’s right to a fair trial under federal law—or even under

state law, as detailed below. Still, the Second Circuit has continued to apply

Claudio’s rule following the passage of AEDPA, albeit while relying on pre-AEDPA

cases and without grappling with the concerns raised here, see, e.g., Lynch v. Dolce,

7 Specifically, in an earlier case, the Second Circuit held that, under Manson

v. Brathwaite, 432 U.S. 98 (1977) and Neil v. Biggers, 409 U.S. 188 (1972),

independent evidence corroborating the defendant’s guilt was irrelevant to the

determination of whether a witness identification was admissible. Raheem v. Kelly,

257 F.3d 122, 140–41 (2d Cir. 2001). Yet the Second Circuit subsequently held that

although it had rejected this so-called “sixth factor” (that independent evidence of

guilt could support the reliability of a witness identification), under AEDPA, a “state

court that used a ‘sixth factor’ analysis would be applying the Manson requirements

in a perfectly reasonable way.” Kennaugh, 289 F.3d at 47–48.

789 F.3d 303, 311 (2d Cir. 2015) & Sellan, 261 F.3d at 310, and thus my decision is

not based on this ground alone.

b. New York’s Standard for Inconsistent Verdicts

As earlier explained, the stop-deliberations rule, as formulated by some

decisions of the Appellate Divisions, requires the trial court to instruct the jury that

an acquittal of the top count on justification grounds precludes consideration of

lesser-included offenses. The rationale for this judicially-created rule is that, absent

the instruction, the Appellate Division “cannot say with any certainty and there is no

way of knowing whether the acquittal on the murder counts was based on a finding

of justification.” People v. Feuer, 11 A.D.3d 633, 635 (2d Dep’t 2004). So what?

The Appellate Division never explained. Presumably, the Appellate Division was

concerned that the jury verdict might be inconsistent and that the guilty verdict on

the lesser-included offenses would have to be set aside.

Feuer and cases like it are based on a fundamental misunderstanding of the

extraordinary limit that the New York Court of Appeals has placed on the application

of its rule regarding inconsistent verdicts. Specifically, it has held that verdicts may

only be set aside as inconsistent or “repugnant” when “the jury, as instructed, must

have reached an inherently self-contradictory verdict.” People v. Tucker, 55 N.Y.2d

1, 8 (1981) (emphasis added); see also People v. DeLee, 24 N.Y.3d 603, 608–09

(2014). “Given that premise, a verdict is repugnant only if it is legally impossible—

under all conceivable circumstances—for the jury to have convicted the defendant

on one count but not the other, and, if there is a possible theory under which a split

verdict could be legally permissible, it cannot be repugnant, regardless of whether

that theory has evidentiary support in a particular case.” DeLee, 24 N.Y.3d at 608

(internal quotation omitted). The Court of Appeals gave the following example in

Tucker: the verdict is inconsistent when “a defendant is charged with two crimes:

charge 1 requires proof of elements A, B and C; charge 2 requires proof of elements

A, B, C and D. A conviction on charge 2 would be repugnant to an acquittal on

charge 1 as the latter verdict would necessarily involve a finding that at least one of

the essential elements of charge 2 was not proven.” Tucker, 55 N.Y.2d at 6 n.2.8

Under the Tucker rule, the verdict in the present case cannot be inconsistent. As

New York courts have held, an acquittal for murder is not inconsistent with a

conviction for manslaughter because those crimes contain different mens rea

elements, namely that a conviction for murder requires the prosecution to prove that

a defendant intended to cause death, while a conviction for first-degree manslaughter

only requires proof that he intended serious physical injury. People v. Adames, 42

A.D.3d 328, 329–30 (1st Dep’t 2007), leave denied 9 N.Y.3d 1030 (2008).

8 By contrast, the Supreme Court has held that even a jury’s self-contradictory

verdict (as determined based on the jury instructions) would not be a basis to

overturn a conviction. See People v. Muhammad, 17 N.Y.3d 532, 538 (2011) (citing

United States v. Powell, 469 U.S. 57, 63 (1984)).

Nor would it matter if the jury’s verdict resulted from its failure to follow the

instructions, because as the New York Court of Appeals has explained, the jury is

“free to extend leniency and may decide not to convict a defendant of one or more

charges notwithstanding the court’s legal instructions.” People v. Muhammad, 17

N.Y.3d 532, 539 (2011). Thus, “a jury may freely reject evidence and exercise its

mercy function by rendering a verdict that appears to be factually illogical.” Id.

Again, the only thing that matters is whether “the jury, as instructed, must have

reached an inherently self-contradictory verdict.” Tucker, 55 N.Y.2d at 8 (emphasis

added). The stop-deliberations instruction functions as an unnecessary and

inappropriate end-run around the appropriate mechanism for evaluating allegedly

inconsistent verdicts set forth in Tucker and its progeny. Perhaps for that reason, the

New York cases on this issue are erratic and inconsistent, and the Court of Appeals

has never embraced such an instruction. See supra nn.5–6.

c. The Modification of the Stop-Deliberation Instruction

Even the Second Department has ultimately recognized that a specific stop-

deliberations instruction is not necessary and that its purpose was “served by

charging in accordance with the [criminal] pattern jury instructions, which require

that the absence of justification be made a specific element of each of the submitted

charges.” People v. Palmer, 34 A.D.3d 701, 703 (2d Dep’t 2006) (emphasis in

original), leave denied 8 N.Y.3d 848 (2007); accord People v. Brooks, 71 A.D.3d

1043 (2d Dep’t 2010) (citing Palmer and pattern jury instructions), leave denied 16

N.Y.3d 828 (2011). Significantly, Palmer’s modification of the Feuer rule has been

adopted by the First Department. Thus, in People v. Barreto, the First Department

declined to review an unpreserved challenge to a justification charge and held in the

alternative, relying on Palmer, “that the justification charge, viewed as a whole,

sufficiently conveyed the principle that if the People did not disprove the defense of

justification beyond a reasonable doubt, defendant was entitled to an acquittal as to

all counts” and that “[t]he charge could not have misled the jury with regard to the

relationship between the charges and the justification defense.” 70 A.D.3d 574, 575

(1st Dep’t 2010), leave denied 15 N.Y.3d 772 (2010). Similarly, in People v.

Melendez, it held that a justification instruction that clarified that justification was

an element of the relevant offenses “adequately conveyed that acquittal of a greater

charge precludes consideration of lesser offenses that are based on the same

conduct” and that any error was harmless given “overwhelming evidence disproving

the justification defense.” 195 A.D.3d 447, 448 (1st Dep’t 2021) (internal quotations

omitted); see also People v. White, 66 A.D.3d 585, 586 (1st Dep’t 2009), leave

denied 14 N.Y.3d 807 (2010); Love v. Smith, 2009 WL 2422384, at *7 (E.D.N.Y.

Aug. 6, 2009). Thus, all that should survive of the stop-justification instruction is

the Palmer/Brooks holdings that the instructions must make clear that justification

is an element of all the relevant offenses—and no more than that.

The instructions here do just that. They told the jury that the prosecution

needed to disprove justification beyond a reasonable doubt as a substantive element

of each homicide count. ECF No. 11-2 at 463, 467, 471–72. In accord with the

pattern jury instructions, the trial court also told the jury that “if you find the People

have failed to prove beyond a reasonable doubt that the defendant was not justified,

then you must find the defendant not guilty of murder in the second degree and/or

manslaughter in the first and second degrees.” Id. at 467 (emphasis added).9 “Jurors

are presumed to follow the legal instructions they are given,” and the trial court’s

instruction left no room for jury confusion. People v. Baker, 14 N.Y.3d 266, 274

(2010); see also Richardson v. Marsh, 481 U.S. 200, 211 (1987). If juries follow

the instructions they are given, and there is no reason to suggest that they did not

here, then a stop-deliberation charge provides no more certainty that the jury will

follow that instruction. Both the instruction that was given and the stop-deliberation

charge in essence tell the jury the same thing: they may not convict if the jury has

concluded that the prosecution has failed to disprove justification beyond a

reasonable doubt.

I could stop here and deny the writ for the same reason that other New York

cases have held that the charge given here satisfies the rationale of Feuer. And the

9 Petitioner argues that the conjunction “and/or” rendered the instruction

ambiguous, but “the words ‘and/or’ commonly mean ‘the one or the other or both.’”

Local Div. 589, Amalgamated Transit Union v. Massachusetts, 666 F.2d 618, 627

(1st Cir. 1981); see also Cambridge Dictionary of American English, “and/or” (“used

to refer to both things or either one of the two mentioned”). In this context, those

words clearly conveyed that the justification defense applied to each homicide

charge individually, meaning that if the jury found petitioner justified then it must

acquit him of both murder and manslaughter.

Appellate Division’s decision here denying coram nobis relief could reasonably have

rested on that ground, and more significantly could have concluded that appellate

counsel was not ineffective for failing to press this argument or that there was no

reasonable probability that it would have affected the outcome. See Chrysler, 806

F.3d at 117. Under these circumstances, it is not necessary for me to engage in a

lengthy analysis of the evidence in this case. Nevertheless, although unnecessary, I

believe such a discussion will be helpful to explain why petitioner’s ineffective

assistance of counsel claim would fail even under a strict application of Feuer, one

that ignores the gloss placed on it by many of the Appellate Division decisions.

This claim fails for two reasons. First, petitioner “encounters an obstacle that

may be insurmountable in any case of ineffective assistance of appellate counsel and

certainly is in this one,” Cruz v. Kirkpatrick, 2017 WL 3382069, at *5 (E.D.N.Y.

Aug. 4, 2017)—that the claim was procedurally forfeited on direct appeal. See

Chrysler, 806 F.3d at 123. As a result, he cannot establish that appellate counsel was

ineffective for failing to raise the issue. See Jameson v. Coughlin, 22 F.3d 427, 429

(2d Cir. 1994) (“The Sixth Amendment does not require appellate counsel

to . . . press meritless arguments before a court”) (internal quotation and alteration

omitted).

Nevertheless, the Appellate Division was aware that justification was an issue

in this case and could have chosen to review the adequacy of the stop deliberation

instruction in the interest of justice on its own motion, see Claudio, 982 F.2d at 800,

if it was persuaded that “there is a reasonable basis for the fear that injustice has been

done,” People v. Semione, 235 N.Y. 44, 46 (1923), the recognized standard for

invoking interest-of-justice jurisdiction. Yet it chose not to. Indeed, the Second

Department has repeatedly declined to reach unpreserved claims that a stop-

deliberation charge should have been given, both before and after petitioner’s

appellate counsel filed his brief in November 2016. See Palmer, 34 A.D.3d at 701;

People v. Holmes, 12 A.D.3d 532, 532 (2d Dep’t 2004), leave denied 4 N.Y.3d 764

(2005); People v. Jung, 22 A.D.3d 506 (2d Dep’t 2005), leave denied 5 N.Y.3d 883

(2005); Brooks, 71 A.D.3d at 1043; People v. Peterkin, 23 A.D.3d 678, 679 (2d Dep’t

2005), leave denied 6 N.Y.3d 779 (2006); People v. Soto, 31 A.D.3d 793, 793 (2d

Dep’t 2006), leave denied 7 N.Y.3d 904 (2006); People v. Gueye, 81 A.D.3d 974 (2d

Dep’t 2011), leave denied 17 N.Y.3d 795 (2011); People v. Fitzgerald, 120 A.D.3d

506, 507 (2d Dep’t 2014), leave denied 24 N.Y.3d 1083 (2014); People v. Louis, 153

A.D.3d 728 (2d Dep’t 2017), leave denied 30 N.Y.3d 981 (2017); People v. McGriff,

175 A.D.3d 1432, 1433 (2d Dep’t 2019), leave denied 34 N.Y.3d 1018 (2019). Six

of these cases narrow the application of Feuer by relegating it to a “cf” cite,

suggesting that the Appellate Division did not read the failure to give this stop-

deliberation charge as causing a “reasonable basis for the fear that injustice has been

done.” Feuer, 11 A.D.3d at 634 (quoting Semione, 235 N.Y. at 46).

Particularly in this case, there was little evidence—other than petitioner’s self-

serving, evasive and contradictory testimony—supporting an inference that he was

in danger of death or serious physical injury, and less evidence that any such fear

was objectively reasonable (as was required for justification). The victim was

unarmed, and petitioner did not testify that he ever saw a gun. ECF No. 11-2 at 362–

63. No such testimony was given by any other witness. Nor was the victim in any

way assaulting petitioner. On the contrary, the victim had him in a “bear hug” in

what appeared to be an effort to avoid being stabbed by the scissor-wielding

petitioner. My view of the evidence—having read the entire transcript as

summarized in detail above—is that if anyone was acting in self-defense it was

Richardson, who was trying to prevent petitioner from stabbing him with a pair of

scissors, which he grabbed before he was put in a bear hug. The evidence showed

that “the victim used, at most, ordinary physical force, and not deadly physical force”

that would justify petitioner stabbing Richardson to death. People v. Davis, 176

A.D.3d 634, 635 (1st Dep’t 2019). In sum, it was likely that the Second Department

declined to review this unpreserved claim—as it had declined to do in similar

cases—either because it believed the trial court’s instructions were sufficient to

satisfy the rationale of the stop-deliberations rule or because of the quality of the

evidence supporting the justification defense.

d. Whether Appellate Counsel Was Ineffective for Failing to Argue that Trial

Counsel Was Ineffective

Unlike his first claim of ineffective assistance of appellate counsel, which is

predicated on the failure to argue that the trial judge should have given a stop-

deliberation instruction even if not requested, petitioner argues in the alternative that

his appellate counsel should have argued that trial counsel was ineffective because

he did not request a stop-deliberation instruction and thereby failed to preserve the

issue. Preservation would not have been an issue on appeal if trial counsel had

requested such an instruction. If trial counsel had done so, there is no reason to

believe that such a charge would not have been given. Indeed, petitioner has not

pointed to any case—nor have I found one—where trial counsel has requested a

stop-deliberations charge but where the trial court declined to give it. To the

contrary, in all of the cases I have found, the Appellate Division has either noted that

the request was not preserved (and therefore reviewed it only in the interest of

justice) or failed to note whether there was a timely request.

Nevertheless, even if such an instruction had been requested and not given,

the Appellate Division could reasonably have concluded that there was no

reasonable probability that the failure to do so would have affected the jury’s verdict.

The instructions that were given were consistent with the pattern jury instructions

and the previous decisions of the Appellate Divisions in Brooks and Palmer, as well

as White, Barreto, Davis, and People v. Macon, 186 A.D.3d 430, 431 (1st Dep’t

2020), leave denied 35 N.Y.3d 1114 (2020). The language in Barreto is apt and

worth repeating: “the justification charge, viewed as a whole, sufficiently conveyed

the principle that if the People did not disprove the defense of justification beyond a

reasonable doubt, defendant was entitled to an acquittal as to all counts” and that

“[t]he charge could not have misled the jury with regard to the relationship between

the charges and the justification defense.” 70 A.D.3d at 575. Indeed, in a recent

opinion, an able district judge held that a similar jury charge “adequately conveyed”

that it was an element of each count that the defendant must not have been justified

in order to convict. Harden v. Fields, 2021 WL 2439144, at *5 (N.D.N.Y. June 15,

2021). “[T]he jury necessarily found that the People proved beyond a reasonable

doubt that [p]etitioner was not justified as to any count when it found [p]etitioner

guilty of the lesser-included crime. . . . As the Supreme Court has observed, courts

‘generally presume that jurors follow their instructions.’” Id. (quoting Penry v.

Johnson, 532 U.S. 782, 799 (2001)).

In sum, petitioner’s argument that appellate counsel was ineffective for failing

to argue that a stop-deliberations instruction should have been given fails for at least

four reasons. First, the Supreme Court has not held that the federal constitutional

right to effective assistance of counsel can be used to challenge counsel’s decision

not to argue a claim under state law, particularly where that claim does not implicate

petitioner’s right to a fair trial. Second, the Feuer rule is wholly inconsistent with

the New York Court of Appeals’ cases on inconsistent verdicts. Third, the Second

Department has held that the rationale of the stop-deliberations rule is satisfied

where, as here, the trial court instructed the jury that justification was an element of

each offense. And finally, petitioner cannot evade his trial counsel’s failure to

preserve this argument by arguing that trial counsel was ineffective for doing so,

precisely because there is no reasonable probability that the requested instruction

would have altered the verdict.

2. Eighth Amendment

Petitioner argues that “the jury found me justified as to the murder in the

second degree” and that appellate counsel should therefore have argued that his

incarceration constituted cruel and unusual punishment because he was actually

innocent of the lesser included homicide counts. Petitioner’s assertion that the jury

found him justified is baseless. As discussed above, the jury acquitted him of murder

but convicted him of manslaughter, which also included as an element that his action

“was not justified.” ECF No. 11-2 at 463, 467, 473. Appellate counsel was not

ineffective for declining to raise this meritless argument. Indeed, “the Supreme

Court has not finally resolved whether there is a federal constitutional right to be

released on proof of actual innocence,” Cassadean v. LaManna, 2021 WL 2809982,

at *3 (E.D.N.Y. July 6, 2021), and petitioner could not obtain habeas relief on that

basis. See Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019).

3. Goetz Charge

Petitioner claims that appellate counsel should have argued that he was

deprived of his right to present a defense by the trial court’s refusal to give a charge

using language taken from People v. Goetz, 68 N.Y.2d 96 (1986). Petitioner

requested a charge that “the standard to be followed by a jury in determining whether

a belief was reasonable is that of a man of ordinary courage in the circumstances

surrounding the defendant at the time of the killing.” 68 N.Y.2d at 109 (internal

quotation omitted). The trial court explained that “the Court of Appeals[] has never

used or defined this so-called man of ordinary courage clause nor has it been

mentioned again anywhere in the rest [of the Goetz opinion],” or included in the

pattern jury instructions. ECF No. 11-2 at 399-400. Indeed, the language petitioner

requested was not part of the holding in Goetz and it appears only in a section tracing

the history of New York’s justification defense because it was used by a law reform

commission in a report to the legislature in the 1930s. 68 N.Y.2d at 109. Petitioner’s

argument fails because New York law did not entitle him to the specific instruction

he sought and, as noted, counsel is not ineffective for declining to pursue meritless

claims. In any event, the instruction petitioner requested was substantively the same

as the one he received, and he was therefore not prejudiced.

B. Sufficiency of the Evidence Proving Intent

A reasonable jurist could conclude that there was evidence sufficient to prove

petitioner’s intent to cause serious physical injury. Evidence is sufficient when “‘any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

original). On habeas review, courts must apply AEDPA’s deferential standard of

review “to the state court’s already deferential review” of the sufficiency of the

evidence. Cavazos v. Smith, 565 U.S. 1, 7 (2011).

29

Petitioner’s sufficiency claim would fail even if double deference did not

apply. The jury could have disbelieved petitioner’s testimony and found that he

either (1) stabbed Richardson from the front before or after the bear hug, or (2)

swung his scissors with the intent to cause serious physical injury while trying to

struggle out of the bear hug. Indeed, the fact that petitioner picked up the scissors

to use as a weapon was itself enough to support the intent finding, regardless of how

events unfolded afterward. The jury’s verdict was well-supported by the evidence,

and the Appellate Division reasonably rejected this challenge.

C. Prosecutorial Misconduct

A reasonable jurist could conclude that the prosecution’s comments during

summation did not deprive petitioner of his right to a fair trial. As an initial matter,

this claim was rejected as unpreserved, Simpson, 151 A.D.3d at 763, and is therefore

procedurally defaulted. Whitley v. Ercole, 642 F.3d 278, 280 (2d Cir. 2011).

Moreover, the Appellate Division also reasonably held that the claim is

without merit. On habeas review, prosecutorial misconduct claims are reviewed

under the “narrow [standard] of due process,” which warrants relief only if the

“egregious misconduct” “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Jackson v. Conway, 763 F.3d 115,

146 (2d Cir. 2014) (internal quotations omitted). Petitioner complains that the

prosecutor denigrated him personally by describing his remorse as “crocodile tears,”

derided his claim of self-defense as “ludicrous” and “impossible,” and commented

30

on his pre-arrest silence after police arrived on the scene. ECF No. 11-2 at 425, 428;

ECF No. 16 at 41. The trial court gave a curative instruction informing jurors that

the statements about petitioner’s pre-arrest silence were improper and must be

disregarded. ECF No. 11-2 at 448. Even assuming that some of these remarks may

have been improper, when “consider[ing] the record as whole,” Jackson, 763 F.3d

at 146, they were not nearly so egregious or harmful that they warrant habeas relief,

particularly when the trial court gave a curative instruction as to some of them.

Indeed, in my view the claim of self-defense in this case was fairly characterized as

“ludicrous” and “impossible.” As previously noted, it seems to me that if anyone

was acting in self-defense it was Richardson, who was trying to prevent petitioner

from stabbing him with a pair of scissors over a set of headphones.

III. CONCLUSION

The petition for relief pursuant to 28 U.S.C. § 2254 is denied. A certificate of

appealability is granted solely as to petitioner’s claim of ineffective assistance of

appellate counsel on the stop-deliberations issue (as discussed in section II.A.1 and

its subsections). A certificate of appealability is otherwise denied.

SO ORDERED.

Edward R. Korman

Brooklyn, New York Edward R. Korman

August 27, 2021 United States District Judge