Nelson v. Lilley

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_______________________________________________

RONALD NELSON,

DECISION AND ORDER

Petitioner,

21-CV-6470L

v.

LYNN LILLEY, Superintendent, Eastern New York

Correctional Facility,

Respondent.

________________________________________________

INTRODUCTION

Petitioner Ronald Nelson, a prisoner in respondent’s custody, has filed a pro se petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. # 1). For the reasons that follow, the

petition is dismissed.

BACKGROUND

A. State Court Proceedings

On August 26, 2014, a Monroe County grand jury indicted Nelson and co-defendants

Vincent Bean and Deiondre Francis in connection with the death of Travone Teasley on charges

of Manslaughter in the First Degree (New York Penal Law §§ 20.00, 125.20[1]) and Gang Assault

in the First Degree (P.L. §§ 20.00, 120.07). Bean also was charged with Murder in the Second

Degree (P.L. § 125.25[1]) against the same victim.

The charges stemmed from an assault that occurred on June 20, 2014, in the City of

Rochester. The indictment alleged that while Nelson kicked Teasley in the face as he lay on the

ground, Bean fatally stabbed Teasley with a knife he had borrowed from Nelson minutes before

the attack. Francis pleaded guilty to reduced charges of second-degree manslaughter and second-

degree gang assault in exchange for his cooperation against Nelson and Bean.

Nelson and Bean were tried jointly in New York State Supreme Court, Monroe County

(Affronti, J.) (“trial court”) from May 7, to May 19, 2015. Neither Nelson nor Bean testified. The

prosecution presented numerous witnesses along with video footage from surveillance cameras

located on two stores near the crime scene. Set forth below is a summary of the testimony relevant

to disposing of the instant petition.

At the beginning of 2014, eyewitness Lawrence Baker heard from a friend that he (the

friend) had been beaten up by co-defendant Francis. In retaliation, Baker and his brother sought

out Francis and beat him up for allegedly attacking Baker’s friend. (T: 716-17).1

Several weeks later, on the night of June 20, 2014, Nelson, Francis, and Bean were hanging

out and drinking with their friend Teana Hannah at the corner of Genesee Street and Kirkland

Road. (T: 717-18). At around 9:30 p.m., Francis went to a nearby convenience store where he saw

Baker, who was with Teasley. (T: 718-19). Francis knew Teasley by his nickname, “Boo-Boo.”

(T: 720). Francis testified that Boo-Boo was not involved in the incident where Baker and his

friends jumped him (Francis).

1 Citations to “T:__” refer to the original page numbers of the trial transcript, filed by Respondent in connection with

his response to the petition. (See Dkt. # 19).

Francis overheard Baker say to Teasley that Francis was “[t]hat boy that we jump[ed]” a

couple weeks ago. (T: 719). Francis immediately left the store and went to find Nelson. Francis

told him that he had just seen the man who had beaten him up, describing him as “[t]he one with

no shirt on,” i.e., Baker. (T: 720). Francis and Nelson ran back toward the store and, on the way,

met up with Bean. When Bean asked Francis and Nelson what was going on, they said, “Let’s go

fight.” (T: 721). When Bean asked who they were fighting, Francis replied, “Boy with no shirt on,

Larry [Baker].” (T:721). Before Bean, Francis, and Nelson headed back to the store to confront

Baker and Teasley, Hannah saw Nelson give Bean a small, silver, folding knife so that Bean would

not be “empty handed.” (T: 905-06, 930, 936, 975-76). Francis also testified that Bean had a knife

before the fight, but he said he saw Bean with it earlier in the evening, around 5 p.m. (T: 731-32).

As Bean, Francis, and Nelson approached Baker and Teasley, Bean was in the lead,

followed by Nelson and Francis. Bean asked Baker what he did to his (Bean’s) cousin, and Baker

denied doing anything. Francis accused Baker of lying and “that’s when [Bean] popped on

[Baker],” that is, hit him. (T: 723). At that point, everyone scattered. Baker ran across the street

and got hit by a car. (T: 513-14). After he stood up, Baker saw Bean, who had run into the street,

pull out a knife. (T: 515). Nytecia Griffin and Zhaviair Cuyler, who were friends with Baker and

Teasley, also heard Teasley say, in reference to Bean, “He’s got a knife.” (T: 664-66).

Francis stated that he pursued Teasley towards a church opposite the convenience store.

As Francis and Teasley squared up and got ready to fight, Bean came up and hit Teasley, causing

him to fall into some bushes next to the church. (T: 724). Baker heard Bean yelling at Teasley,

“You jumped my brother!” (T: 516). Nelson joined in the fray and was kicking Teasley in the face

while Bean was punching Teasley repeatedly. (T: 724-25, 749-50 756). Hannah, who was

watching the fight from a short distance away, saw Bean punching Teasley. She related that

Teasley was holding onto the side of his body, trying to get away, and saying that “he didn’t do it,

it wasn’t him.” (T: 913). Hannah saw blood on the side of the body that Teasley was holding. (T:

913).

Francis said he punched Teasley once but backed off because he saw blood on Teasley’s

chest and neck. (T: 724, 750). At that point, Francis testified, everybody also backed off. Teasley

got up and ran down Kirkland towards Judson, stumbling and falling as he went. Nelson, Bean,

and Francis ran in the same direction.

Teasley collapsed on Judson and did not move again. Francis, Bean, and Nelson kept

walking and went to Francis’s sister’s house on Warwick. (T: 732). Hannah was walking with

them. As they walked, Bean was wiping the blood off the knife with his shirt; he then tossed the

knife into a gutter around Wellington. (T: 734-36). Francis and Hannah testified that Nelson asked

Bean why he stabbed Teasley, saying that that he had not given him the knife for that purpose. (T:

823-24; 917-18).

The medical examiner, Dr. Caroline Dignan, testified that Teasley died as a result of

significant injuries to his heart and lungs, caused by two stab wounds—one to his left neck and

one to his chest. Either of the two stab wounds alone would have been fatal. (T: 1078-79). Teasley

also sustained a non-fatal stab wound to the leg and numerous abrasions.

On May 19, 2015, the jury returned a verdict convicting Bean of all charges and convicting

Nelson of first-degree gang assault while acquitting him of first-degree manslaughter. On June 16,

2015, Nelson was sentenced as a second felony offender to a 15-year determinate term of

imprisonment plus five years of post-release supervision (“PRS”).

Represented by new counsel, Nelson filed an appellate brief asserting, among other claims,

that the evidence was legally insufficient to support the first-degree gang assault conviction. In

particular, Nelson challenged the following two elements of first-degree gang assault—intent to

cause serious physical injury to the victim and causation of serious physical injury to the victim.

The Appellate Division agreed that the People had failed to prove that Nelson’s kick to Teasley’s

face caused “serious physical injury,” because “[t]he medical evidence admitted at trial established

that the victim did not sustain any injuries to his head or face and that the only serious physical

injuries sustained by the victim were the fatal stab wounds caused by the codefendant[, Bean].”

People v. Nelson, 178 A.D.3d 1395, 1396, 116 N.Y.S.3d 826, 827 (4th Dept. 2019). Thus, it

concluded, Nelson could not be found guilty as a principal on the first-degree gang assault charge.

Id.

With respect to accessorial liability under P.L. § 20.00, the Appellate Division found that

there was “no dispute” that codefendant Bean’s actions proved beyond a reasonable doubt his

intent cause serious physical injury to the victim; however, the evidence was “legally insufficient

to establish that [Nelson] shared the codefendant’s intent to cause serious physical injury to the

victim,” Nelson, 178 A.D.3d. at 1396 (citation omitted). The Appellate Division “nevertheless

conclude[d] that the evidence is legally sufficient to establish the lesser included offense of gang

assault in the second degree under a theory of accomplice liability (Penal Law §§ 20.00, 120.06),”

id. at 1396-97. The Appellate Division accordingly vacated the first-degree gang assault sentence

and remanded for resentencing. Leave to appeal was denied by the New York Court of Appeals.

People v. Nelson, 35 N.Y.3d 972 (2020).

At resentencing on July 21, 2020, the trial court imposed the same 15-year sentence on the

second-degree gang assault conviction based on an accessorial theory of liability. Nelson appealed,

arguing that the conviction should be further reduced to third-degree assault and that the re-

sentence was unduly harsh and severe. The Appellate Division declined to further reduce the

conviction, noting that “a defendant who appeals from a resentence only may not challenge the

underlying judgment of conviction.” People v. Nelson, 195 A.D.3d 1442, 1443, 145 N.Y.S.3d 500

(4th Dept. 2021) (citing People v. Jordan, 16 N.Y.3d 845, 846 (2011) (“The Appellate Division

correctly held that defendant could not challenge his plea on appeal from a resentencing

proceeding. [N.Y. Crim. Proc. Law §] 450.30(3) provides that ‘when a resentence occurs more

than thirty days after the original sentence, a defendant who has not previously filed a notice of

appeal from the judgment may not appeal from the judgment, but only from the resentence.’ An

appeal such as this one seeking immediate relief from an underlying judgment of conviction is not

one ‘only from the resentence.’”); other citations omitted). However, the Appellate Division

exercised its discretion to reduce Nelson’s sentence to 12 years’ determinate plus five years’ PRS.

While the original direct appeal was still pending, Nelson filed a pro se motion to vacate

the judgment pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10 on January 12,

2018. Among other claims, Nelson argued that he was actually innocent and that the evidence

against him was legally insufficient to support the first-degree gang assault conviction. On January

2, 2019, New York State, Monroe County Court (Sinclair, J.), denied the motion, finding that the

actual innocence and legal insufficiency of the evidence claims could be resolved on the basis of

the record available on his then-pending initial direct appeal. Consequently, they were

procedurally barred by C.P.L. § 440.10(2)(b), which provides in pertinent part that a court “must

deny a motion to vacate a judgment when . . . [t]he judgment is, at the time of the motion,

appealable or pending on appeal, and sufficient facts appear on the record with respect to the

ground or issue raised upon the motion to permit adequate review thereof upon such an appeal. . . .”

The remaining claims in the C.P.L. § 440.10 motion were denied as meritless. The Appellate

Division denied leave to appeal on April 19, 2019.

B. Federal Habeas Petition

The timely filed petition asserts one ground for relief—that the evidence was legally

insufficient to support a conviction for second-degree gang assault under an accomplice theory of

liability. Respondent answered the petition and filed a memorandum of law in opposition along

with the state court records and transcripts. Respondent argues that the Appellate Division’s

rejection of the legal insufficiency claim is neither contrary to, nor an unreasonable application of,

clearly established Supreme Court precedent.

DISCUSSION

“The statutory authority of federal courts to issue habeas corpus relief for persons in state

custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011) (“Richter”).

AEDPA “revised the conditions under which federal courts may grant habeas relief to a person in

state custody.” Kruelski v. Connecticut Superior Ct. for Jud. Dist. of Danbury, 316 F.3d 103, 106

(2d Cir. 2003). Now, under 28 U.S.C. § 2254(d), a federal court “shall not . . . grant[ ]” an

application for a writ of habeas corpus “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.” 28 U.S.C. § 2254(d).

“By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits’ in state

court, subject only to the exceptions in §§ 2254(d)(1) and (2).” Richter, 562 U.S. at 98. Therefore,

I first must determine if Nelson’s insufficiency of the evidence claim was “adjudicated on the

merits” by any state court.

As the Supreme Court has pointed out, AEDPA itself does not require a statement of

reasons; it “refers only to a ‘decision,’ which resulted from an ‘adjudication.’” Richter, 562 U.S.

at 98. “[D]etermining whether a state court’s decision resulted from an unreasonable legal or

factual conclusion does not require that there be an opinion from the state court explaining the

state court’s reasoning.” Id.

This case is somewhat atypical because the conviction Nelson challenges was the result of

the Appellate Division’s modification of the original conviction on his first direct appeal.

Nonetheless, the Court finds that the Appellate Division adjudicated the merits of the legal

insufficiency claim as part and parcel of its reduction of the first-degree gang assault conviction to

a conviction for accessorial second-degree gang assault. To make this ruling, the Appellate

Division necessarily concluded that, based on the trial record, there was legally sufficient evidence

on which to find Nelson guilty of second-degree gang assault as an accessory, without violating

his Fourteenth Amendment right to due process.

Because there has been an “adjudication on the merits,” the Court views Nelson’s legal

insufficiency claim through the lens of § 2254(d). The question it must answer is whether the

Appellate Division’s was an unreasonable application of the Supreme Court’s clearly established

precedent set forth in Jackson v. Virginia, 443 U.S. 307, 315 (1979), 2 which held that the Due

2 New York State case law makes clear that its “legally sufficient evidence” standard is identical to the federal

constitutional due process right discussed in Jackson. See, e.g., People v. Contes, 60 N.Y.2d 620, 621 (1983) (“The

standard for reviewing the legal sufficiency of evidence in a criminal case is whether ‘after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the

Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against

conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the

crime with which he is charged.” And because the Appellate Division acted as the factfinder in

this case, the Court must ask whether its imposition of the second-degree gang assault conviction

under an accessorial theory of liability resulted from an unreasonable determination of the facts in

the light of the evidence presented, see § 2254(d)(2).

When assessing whether the evidentiary support for a conviction satisfies due process, “the

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson, 443 U.S. at 318–19 (citations omitted; emphasis in original); accord

McDaniel v. Brown, 558 U.S. 120, 132 (2010) (per curiam). “A reviewing court ‘faced with a

record of historical facts that supports conflicting inferences must presume—even if it does not

affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the

prosecution, and must defer to that resolution.’” McDaniel, 558 U.S. at 133 (quoting Jackson, 443

U.S. at 326); citation omitted). Thus, when evaluating a sufficiency of the evidence claim, the

reviewing court is not permitted to redetermine the credibility or reliability of witnesses or

substitute its view of the evidence for that of the trier of fact. See Maldonado v. Scully, 86 F.3d 32,

35 (2d Cir. 1996).

Jackson’s legal insufficiency “standard must be applied with explicit reference to the

substantive elements of the criminal offense as defined by state law.” 443 U.S. at 324 n.16. Under

P.L. § 120.06, “[a] person is guilty of gang assault in the second degree when, with intent to cause

crime beyond a reasonable doubt[.]’”) (quoting Jackson, 443 U.S. at 319). Therefore, the Appellate Division’s finding

that there was legally sufficient evidence to support Nelson’s conviction could not have been “contrary to” clearly

established Supreme Court precedent.

physical injury to another person and when aided by two or more other persons actually present,

he causes serious physical injury to such person or to a third person.” N.Y. Penal Law § 120.06

(McKinney) (emphases supplied). New York’s accessorial liability statute provides that a person

is liable for another person’s conduct constituting a criminal offense when, “acting with the mental

culpability required for the commission [of the criminal offense], he solicits, requests, commands,

importunes, or intentionally aids such person to engage in such conduct.” N.Y. Penal Law § 20.00

(McKinney). P.L. § 20.00 “requires that the accomplice act with the mental culpability required

for the commission of the underlying crime,” and thus “an accomplice must have a shared intent,

or ‘community of purpose’ with the principal.” People v. Carpenter, 30 N.Y.S.3d 299, 301 (2d

Dept. 2016) (quoting People v. Cabey, 85 N.Y.2d 417, 421 (1995); citations omitted). P.L. § 20.00

also “includes an actus reus component,” namely, that “‘the accomplice must have intentionally

aided the principal in bringing forth a result.’” Id. (quoting People v. Kaplan, 76 N.Y.2d 140, 146

(1990) (emphasis omitted in original)).

Pointing to the Appellate Division’s reversal of the first-degree gang assault conviction

based on legally insufficient evidence of intent to cause serious physical injury, Nelson reasons

that this precluded a finding that there was legally sufficient evidence to support a conviction for

second-degree assault as an accessory. However, the mens rea for second-degree gang assault is

not the same as the mens rea for first-degree gang assault. Instead, to have the culpable mental

state for second-degree gang assault, the defendant only need intend to cause physical injury, even

if non-serious. See People v. Sanchez, 866 N.Y.S.2d 78, 81 n.1 (1st Dept. 2008). Indeed, as

Respondent notes, Nelson concedes there was “ample trial evidence” establishing that he “acted

with the lesser mens rea element required for gang assault in the second degree (an intent to cause

physical injury).” (Dkt. # 1-1 at 14-15).

Nelson also contends that the prosecution “failed to prove the actus reus element required

for holding someone criminally liable as an accessory for gang assault in the second degree.” (Dkt.

# 1-1 at 15). The actus reus of the substantive crime here is “caus[ing] serious physical injury,”

N.Y. Penal Law § 120.06.3 Applying the overlay of P.L. § 20.00’s actus reus component, the

prosecution in this case was required to prove beyond a reasonable doubt that Nelson “intentionally

aided4 the principal in bringing forth a result,” Kaplan, 76 N.Y.2d at 146, i.e., “caus[ing] serious

physical injury,” P.L. § 120.06.

Nelson first asserts that accessorial liability under P.L. § 20.00 for second-degree gang

assault “will not attach unless the non-principal acts with a specific goal in mind: causation of

serious physical injury to a victim.” (Dkt. # 1-1 at 15). According to Nelson, he was “surprised

and dismayed” by the fact that Bean stabbed Teasley (Id. at 15-16), as “proved” by “the undisputed

testimony of two prosecution witnesses,” Francis and Hannah. (Id. at 17). It is true that Francis

and Hannah testified that, during their walk home after the incident, Nelson told them he did not

expect Bean to use the knife. However, the fact that inferences favorable to Nelson’s defense could

be drawn from the evidence is immaterial because “the task of choosing among competing

inferences is for the [factfinder], not a reviewing court.” United States v. Salmonese, 352 F.3d 608,

618 (2d Cir. 2003) (internal quotation marks omitted). Thus, insofar as the record contains

evidence from which the [factfinder] could have drawn an inference favorable to the defense, but

did not, the reviewing court must “defer to . . . the [factfinder]’s choice of the competing

3 There is no question that Teasley suffered “serious physical injury.” See N.Y. Penal Law §10.00 (defining serious

physical injury as physical injury which, inter alia, creates a substantial risk of death, or which causes death).

4 Nelson observes that the “the record contains not a scintilla of evidence demonstrating that [he] solicited, requested,

commanded or importuned codefendant Bean to do anything at all, much less to stab the victim with a knife.” Nelson

is correct that the prosecution did not introduce evidence that Nelson verbally solicited, requested, commanded, or

importuned Bean to seriously injure Teasley. Thus, the prosecution’s theory of accomplice liability is based on the

“intentionally aids” clause of P.L. § 20.00.

inferences.” United States v. Kinney, 211 F.3d 13, 18 (2d Cir. 2000) (quoting United States v.

Morrison, 153 F.3d 34, 49 (2d Cir. 1998)); see also Tucker v. Yelich, 16-CV-4931 (JFB), 2017

WL 3669613, at *10 (E.D.N.Y Aug. 24, 2017) (evidence sufficient to permit inference that habeas

petitioner had culpable state of mind despite his sworn denial, as jury was entitled to believe only

those parts of his testimony that inculpated him and disbelieve all exculpatory testimony); United

States v. Perrone, S2 05 CR. 774 KMW, 2007 WL 43998, at *2 (S.D.N.Y. Jan. 4, 2007) (evidence

sufficient despite aspects of government’s case favorable to the defense, as jury was entitled to

disregard that evidence).

In any event, “direct proof of an express agreement or statement between” Nelson and his

codefendants “is not required to show that [he] acted either as a principal or an accessory to a

crime.” Martinez v. Breslin, No. 07 CIV. 8671 (DC), 2009 WL 2244633, at *6 (S.D.N.Y. July 28,

2009) (citing Jones v. Keane, 250 F. Supp. 2d 217, 238 (W.D.N.Y. 2002); People v. Alvarez, 389

N.Y.S.2d 980, 987 (Sup. Ct. 1976)). Thus, Nelson’s subjective expectation that Bean would not

use the knife Nelson gave him is not relevant to whether he intentionally aided Bean in causing

serious physical injury to Teasley.

Nelson also contends that “while [his] single kick may have inadvertently aided the

codefendant’s conduct, it was not intentional aid[.]” (Dkt. # 1-1 at 16 (citing N.Y. Penal Law

§ 15.05[1] (“A person acts intentionally with respect to a result or to conduct described by a statute

defining an offense when his conscious objective is to cause such result or to engage in such

conduct.”)). In other words, Nelson’s position is that when he kicked the victim, he did not have

the conscious objective of causing the ensuing result—the victim sustaining serious physical

injuries. Therefore, he concludes, he did not intentionally aid Bean in causing serious physical

injury to the victim.

Though Nelson’s argument has some surface appeal, it does not find support in New York

case law. To frame this discussion, it bears repeating the well-established principle that a

determination of state law by a state intermediate appellate court binds a federal habeas court. See,

e.g., Hicks v. Feiock, 485 U.S. 624, 629-30 (1988) (“We are not at liberty to depart from the state

appellate court’s resolution of these issues of state law. Although petitioner marshals a number of

sources in support of the contention that the state appellate court misapplied state law on these two

points, the California Supreme Court denied review of this case, and we are not free in this situation

to overturn the state court’s conclusions of state law.”) (footnote omitted); see also Bradshaw v.

Richey, 546 U.S. 74, 76 (2005) (“[A state court’s interpretation of state law, including one

announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas

corpus.”).

To be guilty of second-degree gang assault as a principal in New York, a person need not

have the mens rea of intent to cause serious physical injury. See N.Y. Penal Law § 120.06. The

serious physical injury is the actus reus of the offense; Nelson’s arguments, to some degree, elide

the two components. “As explained by the New York Court of Appeals, ‘[New York] Penal Law

§ 20.00 imposes accessorial liability on an accomplice not for aiding or encouraging another to

reach a particular mental state, but rather for intentionally aiding another to engage in conduct

which constitutes the charged offense while himself “acting with the mental culpability required

for the commission” of that offense.’” Howard v. McGinnis, 632 F. Supp. 2d 253, 277 (W.D.N.Y.

2009) (quoting People v. Flayhart, 72 N.Y.2d 737, 741 (1988) (emphasis in original)). In other

words, Section 20.00 pertains to the actus reus component of the offense, rather than the mens rea

component. See id. The question is thus whether Nelson’s actions intentionally aided Bean to

engage in the conduct prescribed by the statute—seriously injuring Teasley.

Viewing the evidence in the light most favorable to the prosecution, and drawing all

reasonable inferences in the prosecution’s favor, there is a valid line of inferences that a rational

factfinder could have drawn to answer this question in the affirmative. Just minutes before he and

his cohorts launched the attack on Baker and Teasley, Nelson gave the knife to Bean so he would

not be “empty handed.” After Nelson heard Francis’s story about seeing Baker at the convenience

store and overhearing his conversation, Nelson, along with Francis, urged Bean to come with them

and “go fight” Baker. Nelson was present when Francis specifically identified Baker, who was not

wearing a shirt, as the person who had jumped him a few weeks previously. Nonetheless, Nelson

participated in the attack on Teasley by kicking Teasley in the head while Bean (whom he knew

had a knife) was repeatedly striking Teasley, who had been knocked to the ground and was

unarmed and bleeding. It was not until after Francis and Nelson saw that he was bleeding that they

backed off and Teasley managed to get away. Nelson and his cohorts then saw Teasley, who they

knew was bleeding, collapse in the street. However, they walked past him and did not render aid

or call the police.

In Martinez, 2009 WL 2244633, at *7, the district court was presented with a similar factual

scenario and it rejected the petitioner’s claim that the evidence was legally insufficient to sustain

his conviction for assault as accessory. The testimony in Martinez showed that the petitioner and

his codefendant were striking the victim simultaneously, and once the codefendant began hitting

the victim in the head with a weapon, the petitioner did not stop his assault or try to stop his

codefendant. Instead, he continued to kick the victim, leaving him prone and defenseless on the

ground. The district court held that the “evidence was sufficient to allow a reasonable jury to infer

that even if [the petitioner] did not deal the fatal blow” to the victim, “he ‘solicit[ed], request[ed],

command[ed], importune[d], or intentionally aid[ed]’ [his codefendant] in causing the death of

[the victim].” Id. (citing N.Y. Penal Law § 20.00). Furthermore, in Martinez, the testimony

established that the petitioner pulled his codefendant away and the two fled the scene together by

car leaving the victim in the road. The district court concluded that the petitioner and his

codefendant “fled together provides further evidence tending to corroborate a community of

purpose.” Id. (citing People v. Skinner, 269 A.D.2d 202, 203, 704 N.Y.S.2d 18 (1st Dept. 2000);

People v. Peralta, 1 A.D.3d 115, 116, 767 N.Y.S.2d 70 (1st Dept. 2003)). The intermediate

appellate courts in New York consistently have upheld convictions for accessorial liability on

similar facts. See, e.g., People v. Baugh, 956 N.Y.S.2d 313, 316 (3d Dept. 2012) (before the victim

was injured, a verbal confrontation occurred outside the bar involving defendant and his friends

and other individuals, including the victim; when a fight later erupted, witnesses identified

defendant as being part of a group of individuals who were kicking the victim while he lay on the

ground and was seriously injured; finding that this “established that defendant, at that moment,

was part of the group that attacked the victim and shared a ‘community of purpose’ with them

when the victim was seriously injured”); People v. Francis, 922 N.Y.S.2d 581, 584 (3d Dept.

2011) (finding that “[t]estimony that defendant approached Rivera along with his codefendants,

all facing Rivera and his friends, and defendant—aware of the assault—stepped forward to join

their attack by kicking Rivera persuasively established that defendant shared a community of

purpose with them”); People v. Edmonds, 699 N.Y.S.2d 54, 55 (1st Dept. 1999) (“The People’s

evidence established that defendant was part of a group that advanced on the complainant in an

unambiguously menacing manner, and that while some members of the group assaulted the

complainant, others formed a wall, clearly intended to prevent his escape. This provided ample

evidence of accessorial liability.”); People v. Hill, 860 N.Y.S.2d 518, 520 (1st Dept. 2008) (finding

that the verdict was based on legally sufficient evidence and was not against the weight of the

evidence, where evidence supported the inference that defendant intended to cause physical injury

and actively participated in punching and kicking the victim, thereby intentionally aiding the other

members of the group in inflicting physical injury, with the ultimate result being serious physical

injury).

Under Jackson, a habeas petitioner “bears a ‘very heavy burden’ in convincing a federal

habeas court to grant a petition on the grounds of insufficient evidence.” Ponnapula v. Spitzer, 297

F.3d 172, 179 (2d Cir. 2002) (quotation omitted). Applying § 2254(d)(1) on top of the “already

deferential,” Cavazos v. Smith, 565 U.S. 1, 7 (2011), Jackson standard, I cannot conclude “that no

reasonable court could have held that any reasonable jury could have read the evidence to establish

petitioner’s guilt beyond a reasonable doubt.” Garbutt v. Conway, 668 F.3d 79, 81–82 (2d Cir.

2012). Furthermore, giving due deference to the Appellate Division’s assessment of the evidence

in light of its interpretation of a somewhat arcane body of state law, see id., I cannot find that its

decision resulted from an unreasonable determination of the facts in light of the proof presented at

Nelson’s trial. Since Nelson cannot satisfy either § 2254(d)(1) or § 2254(d)(2), he cannot obtain

habeas relief on his legal insufficiency of the evidence claim.

CONCLUSION

For the reasons stated above, the petition (Dkt. # 1) is DISMISSED. Because Nelson has

not made a “substantial showing of the denial of a constitutional nght,” 28 U.S.C. § 2253(c)(2), I

decline to issue a certificate of appealability.

IT IS SO ORDERED.

DAVID G. LARIMER

United States District Judge

Dated: Rochester, New York

July 21, 2022.

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