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Thomas v. Duncan

United States District Court, S.D. New York
Dec 21, 2001
01 Civ. 6791 (BSJ) (AJP) (S.D.N.Y. Dec. 21, 2001)

Opinion

01 Civ. 6791 (BSJ) (AJP)

December 21, 2001


REPORT AND RECOMMENDATION


To the Honorable Barbara S. Jones, United States District Judge:

What began as a commonplace New York City traffic dispute resulted in the fatal shooting death of Moshe Saadia by petitioner Darrell Thomas. Thomas was convicted of manslaughter and criminal possession of a weapon, and sentenced to fifteen to thirty years imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-14.) Thomas' habeas corpus petition, filed by the Legal Aid Society, argues that the state trial court "violated petitioner's due process rights and right to present a defense" in refusing to charge the jury with the defense of justification. (Pet. ¶ 12(A).)

For the reasons set forth below, the Court should deny Thomas' petition.

FACTS

The Trial Evidence

The shooting occurred on March 12, 1996, in lower Manhattan at the corner of Bleecker and LaFayette Streets. (E.g., Levy: Trial Transcript ["Tr."] 77-79.) The prosecution presented seven eyewitnesses: the decedent's friend, Charlie Levy; Thomas' former live-in girlfriend, Sonia Heath; and five passersby who witnessed the shooting. Although Thomas did not testify, the defense presented two other eyewitnesses who saw the shooting from their second-floor office. (Benn: Tr. 671-72, 677, 679; McReynolds: Tr. 706-07). All eyewitnesses testified that Thomas and Moshe Saadia had a heated argument which culminated in Thomas' fatal shooting of the unarmed Saadia. It also was undisputed that Thomas was 5'7" and weighted approximately 170 pounds, while Saadia was 6' tall and weighed 200-230 pounds. (E.g., State Opening: Tr. 10; Defense Opening: Tr. 17.) The trial testimony about this tragedy is related below in the light most favorable to Thomas.

Eyewitness Sylvia Haines, an actress, was "across the street . . . on the opposite corner" walking westward on Bleecker Street, approaching LaFayette, on her way to a babysitting job (Haines: Tr. 26-27); husband and wife Cliff and Robin Wagner were walking south on the east side of LaFayette Street, window shopping on their way to the subway and were across the street approximately thirty to thirty five feet from the scene of the shooting (R. Wagner: Tr. 127-29, 131, 139, 150; C. Wagner: Tr. 182-85); Andrew Kiwacz was looking at a store window on the same side of the street as the shooting (Kiwacz: Tr. 309-10); Randall Schmit was walking downtown off of Bond Street, crossing LaFayette Street on his way to the grocery store (Schmit: Tr. 372).

Ruth Benn and David McReynolds work for the War Resisters League located at 339 LaFayette Street. (Benn: Tr. 672, 677; McReynolds: Tr. 706-07.) Benn was sitting at her desk "doing some paperwork" and McReynolds was "sorting [his] morning mail" when their attention was drawn out the window by Saadia's and Thomas' argument. (Benn: Tr. 678, 681; McReynolds: Tr. 707-08.)

Saadia was a quite "stocky" (Haines: Tr. 31; Kiwacz: Tr. 310; Schmit: Tr. 376), well-built (McReynolds: Tr. 710), "very big" man (Levy: Tr. 87; R. Wagner: Tr. 133; see also Benn: Tr. 680), at least six feet tall (Haines: Tr. 31; R. Wagner: Tr. 133; C. Wagner: Tr. 186). He was "heavy" (Benn: Tr. 680), weighing anywhere from 200 (C. Wagner: Tr. 186) to 230 pounds (R. Wagner: Tr. 133). Heath summarized that Saadia "was huge." (Heath: Tr. 564.) Saadia was wearing a dark jumpsuit or "worksuit" (Levy: Tr. 110-11; C. Wagner: Tr. 186; R. Wagner: Tr. 152; Haines: Tr. 33; see also Kiwacz: Tr. 319, 325; Benn: Tr. 680), "with [a] navy blue turtle neck that said NYPD on [it]s neck" (R. Wagner: Tr. 152).
Thomas was "skinny, next to Mr. Saadia" (Levy: Tr. 87), "slight in build" (R. Wagner: Tr. 141; Schmit: Tr. 376), "not very tall at all" (Haines: Tr. 31), anywhere from five-six to five-eleven (Haines: Tr. 31; Schmit: Tr. 376; R. Wagner: Tr. 141, 161; C. Wagner: Tr. 194), six inches shorter than Saadia (Kiwacz: Tr. 310). Thomas was "maybe one hundred and sixty, one hundred and seventy-five" pounds (R. Wagner: Tr. 141, 161). Thomas was wearing a "green army jacket." (C. Wagner: Tr. 194.)

"Under New York law, in determining whether the evidence warrants a justification charge, the court must assess the record in the light most favorable to the defendant." Davis v. Strack, 270 F.3d 111, 124-25 (2d Cir. 2001); see also page 21 and cases and discussion therein.

On the morning of March 12, 1996, a warm, clear, sunny day, Moshe Saadia was riding in the passenger seat of a Dodge tow truck driven by his "very close" friend, Charlie Levy. (Levy: Tr. 70-75.) Levy and Saadia had known each other approximately six months at the time of the shooting and saw each other almost every day. (Levy: Tr. 71-72.) The tow truck stopped at the intersection of East Houston and Lafayette Streets as Levy attempted to turn left onto Lafayette Street. (Levy: Tr. 75; Heath: Tr. 557.) Levy testified:

R. Wagner: Tr. 129; C. Wagner: Tr. 183; Haines: Tr. 29; Kiwacz: Tr. 309; Schmit: Tr. 372.

The light [turned] green and I was waiting to go make a left. There was traffic on the left side coming to me, and I heard [from one of the cars behind] . . . like someone playing with the horn and yelling, you know, "let's go." I don't remember what he said, and I just ma[d]e the left to LaFayette Street.

(Levy: Tr. 75.) Levy testified that a man in a red car "two, three cars behind," later identified as petitioner Darrell Thomas, was "sticking his head out from his car," "yelling" for Levy to "move." (Levy: Tr. 76-77; see also Heath: Tr. 556-58.) In classic New York style, Levy "yelled back . . . . `Fuck you.'" (Levy: Tr. 76.) Thomas and Levy "got into an argument back and forth." (Heath: Tr. 557-58.) Thomas' girlfriend and passenger, Sonia Heath, testified that Thomas was "yelling" and "cursing . . . out" the tow truck driver, saying "`Fuck you and drive the car. Can't you drive?'" (Heath: Tr. 556-59.) Saadia, sitting next to Levy in the tow truck, said "nothing" at this point. (Levy: Tr. 77.)

Heath, who described her relationship with Thomas as "on again, off again," was twenty-six at the time of the trial and had been in love with Thomas since she was thirteen. (Heath: Tr. 554-56.) On March 12, 1996, they were living together and Heath was pregnant with Thomas' child. (Heath: Tr. 568.) Heath appeared at trial in response to a subpoena from the prosecution. (Heath: Tr. 587.)

Levy "made the turn [onto LaFayette and] saw the red car coming next to [his] window" "on the driver side of [his] truck." (Levy: Tr. 77.) Thomas told Levy "to pull over" in a "loud" "angry" voice. (Levy: Tr. 77-79; see also Heath: Tr. 559-61.) Thomas pulled over ahead of the tow truck, just past the intersection of LaFayette and Bleecker Streets. (Levy Tr. 79.) Saadia also told Levy to "pull over," and Levy stopped two to three feet behind Thomas' red car. (Levy: Tr. 79, 80, 112; see also R. Wagner: Tr. 130, 150-51.)

Saadia "got out from the [tow truck] and [walked] to the red car [driver's side] window," "cursing and yelling" at Thomas. (Levy: Tr. 79-81; see also R. Wagner: Tr. 151.) Thomas grabbed a gun from the floor of the car's back seat, "came out from the red car, and . . . point[ed] a gun to [Saadia's] head." With Thomas' gun pointed at Saadia, the two men "were having an argument," "talking to each other in a very heated manner," but Saadia's "hands were [at his] side[s]" and "[t]here was no physical interaction" between the two men. Levy "came out from the truck and [went] to both of them [to] try to separate them" by "pushing them to the side." (Levy: Tr. 82-83, 113.) Levy told Thomas "`you know, nothing happened, forget about the whole thing. That's it, let us go.'" (Levy: Tr. 82, 85.) Thomas lowered his gun and "just turn[ed] around and went inside his car." (Levy: Tr. 85, 89; see also Heath: Tr. 567-70, 599.) Levy told "Saadia to come over to the truck, to forget about the whole thing . . . [but] Saadia was still standing over there and talking to [Thomas]." (Levy: Tr. 89, 113-14.) Saadia was taunting Thomas, saying: "`You pussy, coming outside with a gun'" (Levy: Tr. 89), "`[y]ou pussy, you faggot, you woman. You're going [to] pull a gun on me and you're not going to use it, you faggot, you punk'" (Heath: Tr. 568, 570, 600), "`is that how you fight, is that how you fight . . . you['re] not a fucking man'" (Kiwacz: Tr. 312-13).

Levy: Tr. 81-82; see also Haines: Tr. 27-28, 50; Heath: Tr. 563-65, 569. Heath remained in Thomas' car. (Heath: Tr. 561-62.)

Haines: Tr. 33; Levy: Tr. 80-81, 88-89; Schmit: Tr. 373-75; Kiwacz: Tr. 309-10; Heath: Tr. 565-66, 598.

Levy turned around toward his tow truck (Levy: Tr. 90), and Thomas slowly started to drive away, but not before tossing a final "`fuck off'" at Saadia. (Heath: Tr. 568-69, 600; Haines: Tr. 60; Levy: Tr. 90-91). Saadia started to get into the tow truck and Levy believed the encounter was over. (Levy: Tr. 113; Schmit: Tr. 378.)

Instead of getting into the tow truck, however, Saadia ran after Thomas' car, "shouting" "angrily," as Thomas "was [driving] slowly up LaFayette Street," and kicked and shattered Thomas' car's taillight. According to Heath, Saadia "looked upset and angry, but really [she] just thought he was a nut, like a crazy person." (Heath: Tr. 603.) Thomas stopped his car immediately. It is undisputed, however, that traffic conditions at that moment permitted Thomas to continue driving away.

Levy: Tr. 90-91, 114-15; R. Wagner: Tr. 130, 133-35, 151; C. Wagner: Tr. 184, 186, 204-05; Kiwacz: Tr. 314, 334; Schmit: Tr. 378; Heath: Tr. 570, 603; Benn: Tr. 679, 681, 692.

Haines: Tr. 61; Levy: Tr. 91; R. Wagner: Tr. 130, 134, 136; Kiwacz: Tr. 314-15; Heath: Tr. 571, 603-05; Benn: Tr. 679, 693.

Levy: Tr. 102-03; Schmit: Tr. 379, 386, 404; R. Wagner: Tr. 134-35; C. Wagner: Tr. 187-88, 194-95; Kiwacz: Tr. 326; Benn: Tr. 704.

The next events transpired quickly. Saadia ran toward the driver's side of Thomas' car. It was undisputed that Saadia was empty handed when he approached. The evidence, in the light most favorable to Thomas, indicates that Saddia was "grabbing" for Thomas. (Benn: Tr. 679, 694, 699; see also Levy: Tr. 94-96; Kiwacz: Tr. 323.)

Haines: Tr. 35-36, 61; Levy: Tr. 105; R. Wagner: Tr. 136, 139, 153; C. Wagner: Tr. 210; Kiwacz: Tr. 328, 339; Schmit: Tr. 379, 389; Heath: Tr. 577; Benn: Tr. 695, 700; McReynolds: Tr. 708.

Levy: Tr. 91-92, 104-05; R. Wagner: Tr. 130, 135, 151; C. Wagner: Tr. 186-88, 205; Benn: Tr. 679.

Benn: Tr. 682, 693; Haines: Tr. 36; Levy: Tr. 103-05; R. Wagner: Tr. 134; C. Wagner: Tr. 187, 194; Kiwacz: Tr. 318; Schmit: Tr. 404; McReynolds: Tr. 720.

Thomas jumped out of the car holding his gun and aimed at Saadia's chest. The evidence, in the light most favorable to Thomas, is that the two men yelled at each other (e.g., Kiwacz: Tr. 335), struggled for a matter of seconds (Benn: Tr. 679, 683, 696, 700; see also Levy: Tr. 94-96, 115-16; Schmit: Tr. 402), and, at least according to one witness, had a "sharp exchange of blows" (McReynolds: Tr. 708-09, 715, 717). For example, Heath specifically testified that Thomas grabbed the gun, exited the car and that, before any shots were fired, Saadia "grabbed" Thomas. (Heath: Tr. 572.) According to Heath, Saadia "enveloped" Thomas (Heath: Tr. 572; see also Benn: Tr. 702), and the two men were "tussling," "wrestling," "twisting" and "turning," before Thomas fired the first shot. (Heath: Tr. 572-76, 605.) According to Cliff Wagner, when Thomas got out of the car with his gun, Saadia had "his arms up like he was going to hit" Thomas. (C. Wagner: Tr. 189-91, 206-07, 212.)

Levy: Tr. 93, 96, 104; R. Wagner: Tr. 130; C. Wagner: Tr. 188, 208, 211: Schmit: Tr. 381, 389; Heath: Tr. 571; Benn: Tr. 679, 699.

After a brief struggle lasting no more than a few seconds, Thomas fired three shots in close succession, shooting Saadia in the chest. Saadia "staggered" towards Levy and collapsed next to him, while Thomas "just ran to his car" and drove off.

Levy: Tr. 91, 96-99, 105, 125; R. Wagner: Tr. 130, 136, 139, 153-54, 157-58, 161; C. Wagner: Tr. 192-93; Benn: Tr. 678-79, 701; Haines: Tr. 34, 36; Kiwacz: Tr. 320-24; Schmit: Tr. 379, 382-83; Heath: Tr. 576-77.

R. Wagner: Tr. 140; Levy: Tr. 99, 122-23; Schmit: Tr. 379, 386; Benn: Tr. 679, 684, 702.

Levy: Tr. 99, 102, 105-06, 123; R. Wagner: Tr. 140-41, 161; Haines: Tr. 61; C. Wagner: Tr. 192, 194-95; Kiwacz: Tr. 326, 386; Heath: Tr. 580; McReynolds: Tr. 712.

Thomas drove quickly north on LaFayette Street, but not so fast as to "draw attention." (Benn: Tr. 678, 702; Heath: Tr. 580-81.) In Thomas' car, Heath "picked [the gun] up and put it in [a] bag and wrapped it up." (Heath: Tr. 580.) Witnesses wrote down the license plate number of Thomas' car and called the police. (E.g., C. Wagner: Tr. 192, 194-95; Della: Tr. 420-21; McReynolds: Tr. 708.) Saadia was brought to Bellevue Hospital and was pronounced dead. (Della: Tr. 424; R. Saadia: Tr. 179.)

Thomas and Heath were intercepted by police at 14th Street and Fourth Avenue as they were stopped at a red light. (Heath: Tr. 582; Laurendi: Tr. 267-70, 274, 280.) The police recovered Thomas' gun from the car. (Laurendi: Tr. 276-79; Jarman: Tr. 409-10.) Officer Joseph Quinn placed Thomas in the back seat of his police car and sat next to him. (Quinn: Tr. 227, 229-30, 232.) Officer Quinn testified that on the way to the police station, Thomas was "nervous" and "very hyper" (Quinn: Tr. 229, 255-56) and told Officer Quinn, "[t]ake me to the station house, I'll tell you everything." (Quinn: Tr. 228, 237, 254; Priminao: Tr. 454, 521.) After Officer Quinn read Thomas his Miranda rights, Thomas stated "`I shot him. He was too big to fight. Everything would have been okay if he didn't kick my light out.'" (Quinn: Tr. 228-29, 237; Priminao: Tr. 455-56, 521, 539.)

The Charge Conference

At the close of the evidence, defense counsel asked the Court to give the jury a justification charge:

[DEFENSE COUNSEL]: Your Honor, a reasonable view of the evidence in light of the number of witnesses presented by the People and the witnesses presented by the defense I think we can reasonably conclude that at the time Mr. Thomas gets out of the red car that he had a gun in his hand and at that time he was quickly attacked or approached or assaulted by this other man. I think at [this] point the defense of justification is established and should be read to this jury.

THE COURT: Based on what?

[DEFENSE COUNSEL]: Well, your Honor, I know that there is a duty to retreat and I submit that the duty to retreat didn't take affect until that moment in time and at that moment in time my client could not retreat, he was grabbed. Reasonable view of the evidence shows that there was this intense struggle or fight and during that struggle or fight —.
THE COURT: What evidence is there in the record that his resort to deadly physical force was justified under [section 35.15] of the [New York] penal law?
[DEFENSE COUNSEL]: He was being attacked by a much larger and presumably stronger man and I think a reasonable view of the evidence because of the speed of the [attack] a reasonable man in Mr. Thomas' position would not [have] had the opportunity . . . to assess whether or not he was being met with the deadly physical force, whether or not this much larger and presumably stronger man was about to attempt to take the weapon from him. There's a number of variables that come into play at that moment.
I think if your Honor or any court officers or the clerk had a weapon in their hand and someone rushed towards them and grabbed them that they would be justified at that moment in trying to defend themselves in using deadly physical force.
THE COURT: If this is the way you want to leave the case, that's fine. I'm simply alerting you there is a major difficulty with whether or not in the absence of your client testifying there is going to be a justification charge. The jury is still outside, it's your call, you do what you choose to do.
[DEFENSE COUNSEL]: You're not going to give the justification charge, your Honor?

THE COURT: I'm doing right now more than I'm required to do.

[ASSISTANT DISTRICT ATTORNEY]: If your Honor wishes, I have case law that supports the proposition that the defendant is not entitled to a justification charge based on this evidence.
[DEFENSE COUNSEL]: I have a Court of Appeals decision in the Matter of [Y.K.] 87 N.Y.2d 430[, 639 N.Y.S.2d 1001 (1996)].
THE COURT: . . . I've read this. This relates to a duty to retreat under a situation where deadly physical force was used or threatened to be used in an esc[a]lated situation.
I still don't see how, absent the defendant's testifying about his version of events, how the subjective, maybe even objective tests that are required to be made out can be made out on this record.
It's uncontested that the victim wasn't armed. It's uncontested at most he swung and hit the defendant. . . . [T]he law isn't that a person can have a loaded operable firearm, unjustifiedly get out of an automobile with it and . . . have a judge charge in the absence of a fellow testifying, I was worried the guy was going to take my unlicensed operable firearm from me and harm me.
It simply is not the law and can't be the law. It can't be a law. The law that the punch permits being shot. That's not the law, it's never been the law.

(Tr. 724-28, emphasis added.) When defense counsel referred the judge to the Court of Appeals' Goetz decision, the judge said he was familiar with it (Tr. 728-29) and further responded:

THE COURT: You can make out the [justification] defense, you can seek to make out the defense through cross-examination, that's obvious, but even with the cross-examination, in this case as the record has it, at most, is the testimony that the victim — if you take the version most beneficial to the defendant, the victim would be characterized as acting bizarrely, that bizarre conduct being the manifestation, manifested by continuing to come toward a fellow whom he knew had a gun, essentially challenging the guy to shoot me, chasing a car, kicking a car light, getting into the argum[ent] in the first place.

(Tr. 729.) At defense counsel's request, the judge adjourned the charge conference to "read what [counsel] submitted." (Tr. 731-32, 736-37, 739.) When court resumed, defense counsel "respectfully object[ed] to your Honor's decision not to charge justification." (Tr. 740.) The trial court found:

[B]y coming out of the car with a gun, it seems to me your client has put the victim in the place of the victim having a right to defend himself, not your client, and your client has probably resorted to the use or threatened use of deadly physical force in defense of criminal mischief, and in — to protect from perhaps a larceny, or property crime, which are two of the reasons why you are not getting justification.

. . . .

Turned his back to the victim, meaning he feared zero from the victim, got in the car and started away. That's the end of that [first] incident. . . . He's in the car safely and the car moves away.
The victim attacks property, then what happens is your client gets out of the car with a loaded firearm, operable, safety off or he flicks the safety off and the victim still with nothing in hand, no reason for your client to fear him other than his hands break the property and comes up.
The law simply doesn't permit a person to bring a loaded, operable or any deadly weapon into a situation against an unarmed man, and then say because the unarmed man tries to defend himself I, with my loaded, operable firearm have to shoot him.

. . . .

I'm just telling you, be careful of what you say in summation, because I'm not going to charge justification, which essentially means I'm not dealing with the topic of justification, but I ultimately have to avoid confusion on the jury's part. I might have to, depending on the summation . . . . [e]xplain to them what the law is.

(Tr. 744-47, emphasis added; see also Tr. 748-54.)

Summation

According to defense counsel's summation, "there was a traffic dispute that got completely out of hand [when] Moshe Saadia attacked" Thomas. (Def. Closing: Tr. 794.) Defense counsel stated that "only one [witness] arguably says that there was a shot before there was contact between Darrell [Thomas] and Mr. Saadia, that witness being Mr. Schmit," while "[a]ll of the other witnesses who testified indicated there was some sort of contact or struggle or a fight before any shooting." (Tr. 764.) When Saadia "rushed [Thomas] and grabbed him, that he was surprised, that he panicked." (Tr. 769.) Defense counsel stated "Now, of course, Darrell [Thomas] when he was in the car could have continued to drive. I submit he did not and could not have possibly perceived or anticipated any risk by stopping, grabbing his gun and getting out to check on his car. . . . His gun had previously been a peacemaker. Now, obviously, Darrell [Thomas] did not want to fight this huge man. I submit . . . he could not have possibly foreseen that Mr. Saadia would advance on him and apparently try to subdue him and possibly take the gun from him. He could not have anticipated that. . . . [W]ith rare exception a person with a gun, with a gun in their hand cannot possibly foresee or anticipate being attacked." (Tr. 773-75; see also Tr. 831-35.)

Defense counsel conceded in summation that Thomas was guilty of criminal possession of a weapon in the third degree. (Tr. 772, 837.)

The prosecution asked in summation: "What was Darrell Thomas thinking when he stopped the car after Moshe Saadia kicked it? We all know he could have simply driven away. . . . What was Darrell Thomas thinking when he exited the car and positioned himself to fire that gun at a point in time which he could see Moshe Saadia coming at him, then he could see that Moshe Saadia is unarmed? . . . We know what he was thinking. He told us, he spoke to us through Officer Quinn and Primiano. I shot him because he was too big to fight." (Prosecution Closing: Tr. 843-44.) The prosecution also argued that Thomas "was cursed at by a man who wouldn't back down from a gun. The defendant's anger bubbled and it rose, and he lashed out, then the explosion, three shots, you are dead." (Tr. 845.) "Moshe Saadia called the defendant's bluff. Unfortunately, Mr. Saadia paid for it with his life." (Tr. 845.)

Verdict and Sentence

The jury acquitted Thomas of second degree murder, and found him guilty of first degree manslaughter and criminal possession of a weapon in the second and third degrees. (Tr. 947-49.)

On December 17, 1997, the trial court, declining to impose the maximum possible sentences, sentenced Thomas to "a minimum of fifteen and maximum of thirty years," that is, "[t]welve and a half to twenty-five [for] the Manslaughter charge" and a consecutive sentence of "two and a half years to five years" for demonstrating "not once, but twice in a . . . short span of time [the intent] to use that weapon unlawfully against another, the first [time] by threatening use and [the second time] by . . . actual deadly use." (Sentencing Tr. ["S."] 32-33.) The trial court noted:

The death of Mr. Saadia appears to be over an approximate forty-nine dollar taillight.

. . . .

There seems to be a continuing theme that this was in part, justified for a variety of reasons having to do with Mr. Saadia's attacking Mr. Thomas. There is of course another way to look at what happened after the taillight was broken. Mr. Saadia would continue to be angry and he charged up towards the car door and Mr. Thomas emerged with a gun but this time the gun was at a different level and perhaps, perhaps there was a different look in Mr. Thomas' face.
The other scenario . . . is that Mr. Saadia apparently realized that he had made a very serious mistake and he was faced with or from his standpoint one choice, try to deflect or get away, however the scenario plays out, Mr. Thomas is the aggressor, from the beginning until the end. The defensive use of deadly force, if that's what Mr. Saadia was trying to do in seeking to remove the gun from Mr. Thomas' hands is justified on Mr. Saadia's part.
There is no justification, whatsoever under any shape or form or scenario in what Mr. Thomas did.
There were no — it's conceded that Mr. Saadia had no weapon. Saadia's hands were up. The motion Mr. Saadia made can most reasonably be explained as trying to get the gun away from Thomas, or deflecting it . . . .

(S. 28-30, emphasis added.)

Thomas addressed Saadia's widow at sentencing: "as [Assistant District Attorney] Pogue pointed out, I had an opportunity to pull into traffic after your husband kicked the taillight out of my car. And so, for that, I stand guilty as charged. But I didn't intend to kill your husband . . . ." (S. 25.)

Thomas' Direct State Appeal

Represented by the Legal Aid Society, Thomas' direct appeal to the First Department argued, inter alia, that "[w]here [Thomas] shot the six foot, 225 pound decedent after he had chased [Thomas'] car, kicked out the taillight, run toward [Thomas], and engaged in a physical struggle with hi m, the court erred in refusing to charge justification and violated [Thomas'] statutory and due process rights and his right to present a defense." (Thomas' Appendix at A102: Thomas 1st Dep't Br. at 42; see also id. at 42-54.)

On August 10, 2000, the First Department affirmed Thomas' conviction, holding:

Defendant's request for a justification charge was properly denied. Under the circumstances of this case, viewed in the light most favorable to defendant, we find no reasonable view of the evidence which would support a justification defense. The evidence clearly established that defendant was the initial aggressor and that the exception contained in Penal Law § 35.15(1)(b) did not apply, that defendant used excessive force, and that defendant was obligated to retreat. As to each of these issues, there was no reasonable view to the contrary.

People v. Thomas, 275 A.D.2d 234, 235, 712 N.Y.S.2d 35, 36-37 (1st Dep't 2000) (citation omitted).

The New York Court of Appeals denied leave to appeal on September 19, 2000. People v. Thomas, 95 N.Y.2d 893, 715 N.Y.S.2d 385 (2000).

Thomas' Federal Habeas Petition

The Legal Aid Society continued its representation of Thomas by timely filing the present federal habeas corpus petition raising the single ground that "the trial court erred in refusing to charge justification and violated petitioner's due process rights and right to Pet. ¶ 12(A); Dkt. No. 3: Thomas 7/25/01 Br. at 23; see also id. at 23-38.)

ANALYSIS

I. APPLICABLE LEGAL PRINCIPLES

A. The AEDPA Review Standard

Before the Court can determine whether Thomas is entitled to federal habeas relief, the Court must address: (1) the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA"); and (2) whether the state court adjudicated Thomas' claims on the merits so that the AEDPA review standard applies.

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S.

362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

For additional cases authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of the Report Recommendation, see Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at * 6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at * 11 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at * 10 (S.D.N.Y. May 25, 2000) (Peck, M.J.).

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) . . . 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)(1)-(2).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.

Accord, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).

Accord, e.g., Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.

Accord, e.g., Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the 120 S.Ct. at 1523. However, "[t]he term `unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. at 1521.

Accord, e.g., Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

The Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); see also, e.g., Loliscio v. Goord, 263 F.3d at 184.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).

The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the `unreasonable application' or `contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

Sellan v. Kuhlman, 261 F.3d at 314; accord Aparicio v. Artuz, 269 F.3d at 93.

B. Federal Habeas Review of State Court Jury Instructions

Less than two months ago, in granting habeas relief in connection with a state court's failure to instruct the jury as to the defense of justification, the Second Circuit reiterated that "' it is not the province of a federal habeas court to reexamine state-court determinations of state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treatises of the United States.'" Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991)).

The Second Circuit in Davis v. Strack, 270 F.3d at 123-24, clarified the law pertaining to federal habeas review of a trial court's failure give a justification defense charge to the jury. This Court quotes from that opinion at length:

Where an error in a jury instruction is alleged, "it must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, [400](1973). The question is not whether the trial court gave a faulty instruction, but rather "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147, 94 S.Ct. 396; see also Estelle [v. McGuire], 502 U.S. [62], 72, 112 S.Ct. 475 [482] (quoting and reaffirming Cupp).
[The Second Circuit] has repeatedly held that "[i]n order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985); see also Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990) (quoting Casillas [v. Scully], 769 F.2d [60], 63 [(2d Cir. 1985)]) (same); Sams v. Walker, 18 F.3d 167, 171 (2d Cir. 1994) (quoting Casillas, 769 F.2d at 63) (same). The fact that "federal habeas corpus relief does not lie for errors of state law," Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, [3102] (1990), does not mean, however, that errors under state law cannot result in cognizable violations of a constitutional right to due process. What due process requires will often depend on what state law is. States are free to define the elements of, and defenses to, crimes. See Apprendi v. New Jersey, 530 U.S. 466, 484-87, 120 S.Ct. 2348, [2360-61] (2000); McMillan v. Pennsylvania, 477 U.S. 79, 84-86, 106 S.Ct. 2411, [2415-16] (1986). Once states have promulgated laws to define criminal conduct, however, federal due process protects a defendant from conviction unless he is shown in a fair proceeding to have violated those laws.
Thus, while [the Court] may not grant habeas relief for a "mere error of state law," Blazic [v. Henderson], 900 F.2d at 541, a finding that the petitioner was erroneously deprived of a jury instruction to which he was entitled under state law is the first step in the determination whether that error violated the petitioner's federal due process rights. Accordingly, courts have granted habeas relief for a failure to charge justification where the evidence supported a justification charge under state law and where the erroneous failure to give such a charge was sufficiently harmful to make the conviction unfair. Cupp v. [Naughten], 414 U.S. at 146, 94 S.Ct. [at 400].

Davis v. Strack, 270 F.3d at 123-24 (emphasis added).

"In determining whether a petitioner was entitled to a defense under state law, federal courts must of course defer to state-court interpretations of the state's laws, so long as those interpretations are themselves constitutional." Davis v. Strack, 270 F.3d at 123 n. 4. The federal court's "role here is not to interpret New York's law of justification, but to determine whether the evidence was sufficient to warrant a justification charge under that law." Davis v. Strack, 270 F.3d at 123 n. 4. Therefore, this Court cannot grant Thomas habeas relief "without answering three questions in the petitioner's favor. First, was the justification charge required as a matter of New York state law? Second, if so, did the failure to give the requested charge violate the standard set out in Cupp. Third, if so, was the state court's failure of such a nature that it is remediable by habeas corpus, given the [AEDPA] limitations prescribed by 28 U.S.C. § 2254?" Davis v. Strack, 270 F.3d at 124.

II. THOMAS' PETITION SHOULD BE DENIED BECAUSE HE WAS NOT ENTITLED TO A JUSTIFICATION JURY CHARGE UNDER NEW YORK LAW

A. The Justification Defense Under New York Law

New York Penal Law § 35.15 provides that a person is justified in using physical force in self-defense under the following circumstances:

1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:
(a) The latter's conduct was provoked by the actor himself with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case his use of physical force is nevertheless justifiable if he has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force . . . .
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) He reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating . . . .

Penal Law § 35.15 (emphasis added).

"Under New York law, justification is a defense, not an affirmative defense; therefore, when the defense is raised on a proper evidentiary record, the People bear the burden of disproving it beyond a reasonable doubt." Davis v. Strack, 270 F.3d 111, 124; (2d Cir. 2001).

See, e.g., In re Y.K., 87 N.Y.2d 430, 433, 639 N.Y.S.2d 1001, 1003 (1996); People v. McManus, 67 N.Y.2d 541, 546-27, 505 N.Y.S.2d 43, 46 (1986); People v. Steele, 26 N.Y.2d 526, 528, 311 N.Y.S.2d 889, 891 (1970); In re Ismael S., 213 A.D.2d 169, 171-72, 623 N.Y.S.2d 571, 573 (1st Dep't 1995); People v. Veitia, 171 A.D.2d 461, 461, 566 N.Y.S.2d 868, 868 (1st Dep't), appeal denied, 78 N.Y.2d 976, 574 N.Y.S.2d 956 (1991); People v. Jackson, 154 A.D.2d 930, 930, 547 N.Y.S.2d 164, 164 (4th Dep't), appeal denied, 74 N.Y.2d 949, 550 N.Y.S.2d 284 (1989), error coram nobis denied mem., 213 A.D.2d 1085, 625 N.Y.S.2d 998 (4th Dep't 1995); William Donnino, "Practice Commentary" to Penal Law Article 35, at p. 128 (McKinney's 1998); see also, e.g., Tate v. Wood, 963 F.2d 20, 23 (2d Cir. 1992); Blazic v. Henderson, 900 F.2d 534, 542 (2d Cir. 1990).

"Under New York law, in determining whether the evidence warrants a justification charge, the court must assess the record in the light most favorable to the defendant." Davis v. Strack, 270 F.3d at 124-25. "When evidence at trial viewed in the light most favorable to the accused, sufficiently supports a daimed [justification] defense, the court should instruct the jury as to the defense, and must when so requested. . . . As a corollary, when no reasonable view of the evidence would support a finding of the tendered defense, the court is under no obligation to submit the question to the jury." People v. Watts, 57 N.Y.2d at 301, 456 N.Y.S.2day 678; see also, e.g., People v. McManus, 67 N.Y.2d at 549, 505 N.Y.S.2d at 48; People v. Padgett, 60 N.Y.2d at 144-45, 468 N.Y.S.2d at 856.

See, e.g., People v. Magliato, 68 N.Y.2d 24, 29, 505 N.Y.S.2d 836, 840 (1986); People v. McManus, 67 N.Y.2d at 549, 505 N.Y.S.2d at 48; People v. Padgett, 60 N.Y.2d 142, 144, 468 N.Y.S. 854, 856 (1983); People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 678 (1982); People v. Steele, 26 N.Y.S.2d at 529, 311 N.Y.S.2d at 891-92; People v. Vecchio, 240 A.D.2d 854, 855, 658 N.Y.S.2d 720, 721 (3d Dep't 1997); People v. Rivera, 138 A.D.2d 169, 174, 530 N.Y.S.2d 802, 805 (1st Dep't), appeal denied, 72 N.Y.2d 923, 532 N.Y.S.2d 857 (1988).

In In re Y.K., 87 N.Y.2d 430, 639 N.Y.S.2d 1001, the New York Court of Appeals explained that Penal Law § 35.15 imposes a three part test to determine whether the use of deadly physical force was justified: first, whether defendant subjectively believed deadly physical force was necessary; second, whether this belief was objectively reasonable; and third, whether defendant could have retreated with safety:

In People v. Goetz, [ 68 N.Y.2d 96, 115, 506 N.Y.S.2d 18, 29-30 (1986)] we explained that the justification statute imposes a two-part test which involves both subjective and objective components. When a defendant claims the use of force was justified, the fact finder must first determine if defendant believed physical force (or deadly physical force) was necessary to defend against the imminent use of physical force (or deadly physical force). That is the subjective component. If the People fail to disprove defendant believed physical force was necessary, the fact finder must next consider whether defendant's belief was reasonable, that is, whether a reasonable person would have held that belief under the circumstances which existed. It is not enough that the defendant believed that the use of force was necessary under the circumstances; his reactions must be those of a reasonable person similarly confronted. That is the objective component.
If the case involves the use of deadly physical force and the fact finder determines that the use of such force was subjectively and objectively reasonable under the circumstances, then the fact finder must determine whether defendant could retreat with safety. If a defendant confronted with deadly physical force knows retreat can be made with complete safety and fails to do so, the defense is lost.

In re Y.K., 87 N.Y.2d at 433-34, 639 N.Y.S.2d at 1003 (emphasis added citation omitted).

See, e.g., People v. Wesley, 76 N.Y.2d 555, 559, 561 N.Y.S.2d 707, 709-10 (1990); People v. Snell, 256 A.D.2d 480, 682 N.Y.S.2d 80, 80 (2d Dep't 1998), appeal denied, 93 N.Y.2d 979, 695 N.Y.S.2d 65 (1999); People v. Hayes, 248 A.D.2d 635, 635, 669 N.Y.S.2d 953, 954 (2d Dep't 1998); People v. Young, 240 A.D.2d 974, 976, 659 N.Y.S.2d 542, 543 (3d Dep't), appeal denied, 90 N.Y.2d 1015, 666 N.Y.S.2d 110 (1997); People v. Roldan, 222 A.D.2d 132, 138, 647 N.Y.S.2d 179, 183 (1st Dep't 1996); People v. Hall, 220 A.D.2d 615, 615, 633 N.Y.S.2d 39, 39-40 (1995), error coram nobis denied, 275 A.D.2d 469, 712 N.Y.S.2d 889 (2d Dep't 2000); People v. Counts, 214 A.D.2d 897, 898, 625 N.Y.S.2d 697, 698 (3d Dep't), appeal denied, 86 N.Y.2d 792, 800, 632 N.Y.S.2d 506, 514 (1995); In re Ismael S., 213 A.D.2d at 171, 623 N.Y.S.2d at 573; People v. Hagi, 169 A.D.2d 203, 210, 572 N.Y.S.2d 663, 667-68 (1st Dep't), appeal denied, 78 N.Y.2d 1011, 575 N.Y.S.2d 819 (1991); see also, e.g., Brown v. Artuz, 124 F.3d 73, 81 (2d Cir. 1997), cert. denied, 522 U.S. 1128, 118 S.Ct. 1077 (1998); Blazic v. Henderson, 900 F.2d at 540.

Under New York law, reasonableness is determined based on the circumstances facing the defendant, including his knowledge of the deceased's violent nature. As the New York Court of Appeals explained:

Evidence that the defendant knew of prior acts of violence by the deceased could help establish his requisite beliefs [i.e., subjective belief that he faced imminent harm]. Moreover, such knowledge would also be relevant on the issue of [objective] reasonableness, as the jury must consider the circumstances a defendant found himself in, which would include any relevant knowledge of the nature of persons confronting him.

People v. Goetz, 68 N.Y.2d at 113, 506 N.Y.S.2d at 29. As the Second Circuit recently explained:

See also, e.g., People v. Wesley, 76 N.Y.2d at 559, 561 N.Y.S.2d at 710 ("Evidence of a defendant's `circumstances' includes relevant knowledge that the defendant may have had about the victim . . . and any prior experiences that the defendant may have had . . . ."); People v. Miller, 39 N.Y.2d 543, 551, 553-54, 384 N.Y.S.2d 741, 747, 748 (1976) ("a defendant in a criminal case, where justification is an issue, [must be permitted] to introduce evidence of the victim's prior specific acts of violence of which the defendant had knowledge"); People v. Hagi, 169 A.D.2d at 210, 572 N.Y.S.2d at 667-68; People v. Powell, 168 A.D.2d 393, 394, 563 N.Y.S.2d 402, 402-03 (1st Dep't 1990), appeal denied, 78 N.Y.2d 972, 574 N.Y.S.2d 952 (1991); People v. Rivera, 138 A.D.2d at 174, 530 N.Y.S.2d at 805 ("[A] determination of reasonableness must be based on the circumstances facing a defendant and his situation. Those circumstances include any relevant knowledge the defendant had about the potential assailant and any prior experiences defendant had which could provide a reasonable basis for his belief that the other person intended to use deadly physical force.").

[Penal Law § 35.15] and the leading New York cases construing it, [In re] Y.K., 87 N.Y.2d 430, 639 N.Y.S.2d 1001 [(1996)]; People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18 (1986); [People v.] McManus, 67 N.Y.2d at 549, 505 N.Y.S.2d 43 [(1986)], for a person seeking to assert the defense of justification for his use of deadly force by reason of his belief that deadly force would be used against him, the essential elements of the defense (which the People must disprove) are as follows:

I. If the defendant reasonably believes

(a) that another person is using or is about to use deadly physical force against him, and
(b) that it is necessary for him to use deadly physical force to defend himself, then the defendant is justified in using deadly physical force against the other person, but only to the extent he reasonably believes necessary to defend himself; provided the defendant did not have a duty to retreat instead of using deadly physical force in his defense.

II. The defendant has a duty to retreat if

(a) he knows he can retreat with complete safety as to himself and others, and
(b) he reasonably believes the other person's use of deadly physical force against him is either actually occurring or is imminent.

Davis v. Strack, 270 F.3d at 125-26.

The Court must therefore proceed to examine these aspects of the defense of justification as applied to Thomas' trial.

B. The State Court Correctly Refused to Give a Justification Jury Charge

1. Thomas was Not Entitled To a Justification Charge Under New York Law Because He was the "Aggressor"

Under Penal Law § 35.15(1), the justification defense is unavailable to actors who are the initial aggressors. See, e.g., Penal Law § 35.15(1)(b) (justifi cation defense unavailable where defendant "was the initial aggressor"); Bilbrew v. Garvin, No. 97-CV-1422, 2001 WL 91620 at * 10 (E.D.N.Y. Jan. 10, 2001); People v. Simpkins, 284 A.D.2d 185, 185, 728 N.Y.S.2d 432, 433 (1st Dep't), appeal denied, 96 N.Y.2d 924, 732 N.Y.S.2d 642 (2001); People v. Smith, 271 A.D.2d 462, 463, 706 N.Y.S.2d 880, 880-81 (2d Dep't) ("The People disproved the defense of justification beyond a reasonable doubt, as there was legally sufficient evidence to support the conclusion that the defendant was the initial aggressor and the victim was unarmed."), appeal denied, 95 N.Y.2d 871, 715 N.Y.S.2d 226 (2000); People v. Henry, 244 A.D.2d 424, 425, 664 N.Y.S.2d 315, 316 (2d Dep't) (justification disproved where "the defendant was the initial aggressor and the victim was initially unarmed"), appeal denied, 91 N.Y.2d 874, 668 N.Y.S.2d 572 (1997); People v. Soriano, 188 A.D.2d 420, 420, 591 N.Y.S.2d 1008, 1009 (1st Dep't 1992) (same), appeal denied, 81 N.Y.2d 847, 595 N.Y.S.2d 747 (1993).

The First Department held that Thomas was not entitled to a justification charge because he was the "initial aggressor . . . and the exception contained in Penal Law § 35.15(b) did not apply." People v. Thomas, 275 A.D.2d 234, 235, 712 N.Y.S.2d 35, 36-37 (1st Dep't), appeal denied, 95 N.Y.2d 893, 715 N.Y.S.2d 385 (2000). The evidence supports this conclusion. Thomas initiated the altercation. It was Thomas who, due to his impatience, began honking and cursing at Levy and Saadia. Thomas drove up to Levy and Saadia and told them to "pull over." (See page 4 above.) In response to nothing more than verbal provocation (which in fact Thomas began before Saadia said anything), Thomas exited his car and pulled an illegal handgun on an unarmed man. (See page 5 above.) Of course, "[v]erbal provocation would not have justified defendant's use of physical force." People v. Soriano, 188 A.D.2d 420, 420, 591 N.Y.S.2d 1008, 1009 (1st Dep't 1992). As noted, at least as to Saadia, it is clear that Thomas started even the verbal dispute. (See page 4 above.) And it is further undisputed that Thomas was the initiator and hence aggressor of any physical actions when he got out of his car carrying his loaded gun. (See page 5 above.) The First Department's finding that Thomas was not entitled to the justification defense because he was the affressor was not "an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(2).

See, e.g., People v. Hernandez, 195 A.D.2d 573, 573-74, 600 N.Y.S.2d 491, 492 (2d Dep't) ("[N]o reasonable view of the evidence indicated that the defendant was justified in using deadly physical force and the court correctly refused to charge the jury concerning this defense" where the defendant stabbed "the victim to death on the subway after the defendant provoked the victim into an altercation with verbal abuse."), appeal denied, 82 N.Y.2d 719, 602 N.Y.S.2d 817 (1993); People v. Lee, 185 A.D.2d 824, 825, 586 N.Y.S.2d 646, 647 (2d Dep't) (no justification defense available to defendant where "deceased engaged in verbal and physical exchange over the use of a public phone [but there was] no indication in the record that the deceased was ever armed with a weapon"), appeal denied, 82 N.Y.2d 806, 604 N.Y.S.2d 943 (1992); People v. Porter, 161 A.D.2d 811, 811, 556 N.Y.S.2d 139, 140 (2d Dep't) ("[T]he trial court did not err in declining to charge the defense of justification" where "the victim and the defendant had engaged in a verbal exchange" but "there [was] no indication that the victim was armed, [or] that the defendant actually believed the victim was about to use deadly physical force against him"), appeal denied, 76 N.Y.2d 943, 563 N.Y.S.2d 72 (1990); People v. Baez, 118 A.D.2d 507, 508, 500 N.Y.S.2d 3, 4 (1st Dep't 1986) ("Abusive language does not constitute provocation. . . . [A]n initial aggressor is the one threatening to use or using physical force rather than the one using insulting language.").

It is true that after pulling his gun the first time, Thomas returned to his car and started to drive away. (See page 6 above.) The parties' briefs dispute whether Thomas "completely" withdrew from the fray. (Compare Dkt. No. 10: State Br. at 23 with Dkt. No. 12: Thomas Reply Br. at 7. Regardless, Thomas as the initial aggressor is not entitled to the initial aggressor exception in Penal Law § 35.15(1)(b) because Thomas responded to Saadia's kicking Thomas' car's taillight with deadly physical force in response to mere property damage.

Penal Law § 35.15(1)(b) contains an exception that allows the initial aggressor to claim justification "if he has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force." Penal Law § 35.15(1)(b); compare People v. Simmons, 206 A.D.2d 550, 551-53, 615 N.Y.S.2d 56, 58-59 (2d Dep't 1994) (defendant who was initial aggressor who threw first punch, but disengaged himself, entitled to justification defense when deceased then pulled gun); People v. Porter, 177 A.D.2d 1001, 1002, 578 N.Y.S.2d 22, 23, (4th Dep't 1991) (reversing manslaughter conviction because the trial "court should have charged that, even if [defendant] was the initial aggressor, she nevertheless was entitled to rely upon the justification defense because the evidence, reasonably viewed in the light most favorable to her . . . established that she withdrew from the encounter and effectively communicated such withdrawal to the victim, who persisted in continuing the incident by following defendant" and accosting her physically), appeal denied, 79 N.Y.2d 862, 580 N.Y.S.2d 734 (1992) 79 N.Y.2d 922, 582 N.Y.S.2d 82 (1992).

"[T]he use of deadly force is not permitted in this State for the mere defense of property." People v. Buckmire, 167 Misc.2d 581, 584, 638 N.Y.S.2d 883, 885 (Sup.Ct. N Y Co. 1995); Penal Law § 35.15(2); Penal Law § 35.25 ("A person may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably belives such to be necessary to prevent or terminate what he reasonably believes to be the commission or attempted comission by such other person of larceny or of criminal mischief with respect to property other than premises.").

In fact, even if the Court were to separate the altercation between Thomas and Saadia into two separate incidents (the first ending when Thomas began to drive away from the first altercation, and the second beginning when Saadia kicked Thomas' taillight), Thomas was the aggressor when he left his car with a loaded gun the second time, since he was overreacting to Saadia's conduct, which did not involve the use or threatened use of deadly physical force. (See Tr. 752-54, where the trial judge held that "[t]he law simply doesn't permit a person to bring a loaded, operable or any deadly weapon into a situation against an unarmed man, and then say because the unarmed man tried to defend himself, I, with my loaded, operable firearm, have to shoot him."). See, e.g., People v. Berk, 217 A.D.2d 941, 942-43, 629 N.Y.S.2d 588, 590 (4th Dep't 1995) ("[T]he testimony of defendant that he entered the room armed with a loaded gun in plain view provided a sufficient basis for the jury to conclude that defendant was the initial aggressor."), aff'd, 88 N.Y.2d 257, 644 N.Y.S.2d 658 (1996); People v. Ross, 197 A.D.2d 713, 714, 602 N.Y.S.2d 919, 921 (4th Dep't) ("[T]he evidence establishes that the defendant was the initial aggressor and, with a gun pointed at his unarmed victim, he was in complete control throughout the situation."), appeal denied, 82 N.Y.2d 902, 610 N.Y.S.2d 169 (1993).

Thomas was not entitled to a justification defense because he was the aggressor in this case, or at most, was defending his property, neither of which would entitle Thomas to a justification defense under Penal Law § 35.15 for the use of deadly physical force.

2. Thomas was Not Entitled To a Justification Charge Under New York Law Because he Did Not Retreat When He Had the Opportunity to Do So Safely

Even if the Court were to assume, as Thomas' counsel argues, that Thomas successfully "retreated" from the initial argument that he started, and that Saadia then "attacked" Thomas' car and was coming towards Thomas with intent to use physical force (Dkt. No. 12: Thomas Reply Br. at 7, 8), it is undisputed that Thomas had the opportunity to retreat safely after Saadia kicked his taillight. In fact, he was in his car, driving away. Defense counsel conceded at trial that Thomas had the opportunity to keep driving (Def. Summation: Tr. 774-75) and Thomas himself admitted this during sentencing (S. 25 quoted at page 14 fn. 20 above). Rather than retreat, however, Thomas stopped, grabbed his gun, got out of his car and, during a struggle with Saadia, shot and killed him. Accordingly, Thomas was not entitled to a justification charge under New York law because he failed to retreat when he had the opportunity to do so safely.

"If the case involves the use of deadly physical force and the fact finder determines that the use of such force was subjectively and objectively reasonable under the circumstances, then the fact finder must determine whether defendant could retreat with safety. If a defendant confronted with deadly physical force knows retreat can be made with N YS.2d 1001, 1003 (1996) (emphasis added).

See, e.g., Brown v. Artuz, 124 F.3d 73, 81 (2d Cir. 1997) ("Brown was the only person with a gun. The victim was unarmed. Moreover, nothing in the record suggests that Brown somehow believed, mistakenly, that [the victim] possessed a weapon at any time during their struggle." Defendant did not show that he could not have retreated.), cert. denied, 522 U.S. 1128, 118 S.Ct. 1077 (1998); People v. Young, 240 A.D.2d 974, 976-77, 659 N.Y.S.2d 542, 543 (3d Dep't), appeal denied, 90 N.Y.2d 1015, 666 N.Y.S.2d 110 (1997); People v. Counts, 214 A.D.2d 897, 898, 625 N.Y.S.2d 697, 698 (3d Dep't), ("there is no record evidence to indicate that defendant attempted to retreat or that he was unable to do so with complete safety"), appeal denied, 86 N.Y.2d 792, 800, 632 N.Y.S.2d 506, 514 (1995); see also, e.g., People v. Stridiron, 33 N.Y.2d 287, 292, 352 N.Y.S.2d 179, 182 (1973) (Justification defense not warranted, even though decedent and companions were the initial aggressors, because defendant "did not retreat before resorting to deadly force himself."); People v. Vasquez, 161 A.D.2d 678, 679, 555 N.Y.S.2d 451, 452 (2d Dep't) ("Viewing the evidence adduced at trial in the light most favorable to the defendant . . ., we find that [defendant was not entitled to justification jury charge because] [t]he evidence shows that defendant had the opportunity to retreat with complete safety . . . [and] [a]s such, his use of deadly force against the unarmed victim was unjustified."), appeal denied, 76 N.Y.2d 867, 560 N.Y.S.2d 1007 (1990), error coram nobis denied, 208 A.D.2d 661, 618 N.Y.S.2d 224 (2d Dep't 1991); People v. Richardson, 155 A.D.2d 488, 489, 547 N.Y.S.2d 149, 150 (2d Dep't 1989) ("It is well established that justification is not a defense to the use of deadly physical force unless the actor reasonably believes that another person is about to use deadly physical force against hi m and he is unable to retreat safely."); People v. Rattley, 148 A.D.2d 642, 643, 539 N.Y.S.2d 101, 102 (2d Dep't) ("Even if the defendant believed that the decedent was about to use deadly force against him, he was obligated to withdraw from the encounter, since the evidence establishes that he had the ability to retreat in complete safety."), appeal denied, 74 N.Y.2d 745, 545 N.Y.S.2d 120 (1989); People v. Reyes, 116 A.D.2d 602, 602-03, 497 N.Y.S.2d 463, 464 (2d Dep't 1986) ("defense of justification was not available to defendant" where after an initial altercation, "defendant returned to the scene of the prior incident carrying a baseball bat and a knife. Even assuming at this point that defendant reasonably believed that the decedent was about to use deadly force against him, he was obligated to withdraw from the encounter rather than use deadly force himself since he had the ability to retreat in complete safety."), appeal denied, 67 N.Y.2d 949, 502 N.Y.S.2d 1042 (1986); People v. Dallara, 108 A.D.2d 867, 868, 485 N.Y.S.2d 768, 769 (2d Dep't 1985) ("Defendant was not justified in using deadly physical force against the decedent" because "he could have avoided its use by retreating with complete safety."); People v. Mungin, 106 A.D.2d 519, 519, 483 N.Y.S.2d 54, 55 (2d Dep't 1984) ("[D]efense of justification was not available to the defendant as a matter of law," where "[e]ven assuming that the decedent did grab for his knife when the defendant approached him with the shotgun in hand, the defendant concededly had the ability to withdraw and retreat from the encounter but instead chose to resort to more than necessary force to allegedly defend himself.")

In Davis v. Strack, the Second Circuit pointed out that "the justification defense remains available even if a prudent person in the defendant's position might have retreated earlier, or avoided the area where the potential assailant was to be found." Davis v. Strack, 270 F.3d 111, 127 (2d Cir. 2001). The Second Circuit in Davis found that while petitioner "imprudently" returned to an area where an individual who had robbed him at gunpoint on three prior occasions was, the petitioner had no duty to retreat because he had no reasonable belief that his former tormentor, the victim, was about to, i.e., "imminently," use deadly force against him. Davis v. Strack, 270 F.3d at 127-28 n. 5 ("We do not dispute that [petitioner]'s return to the Amsterdam Avenue corner, armed with a gun was imprudent, and also illegal. . . . But New York Law does not obligate a person to leave a place he is entitled to be merely because there is another person present who might present a future threat. It is only when the threat becomes imminent that the actor is obligated to withdraw if he can do so in complete safety.") The petitioner in Davis did not shoot at the victim until petitioner reasonably believed the victim was reaching for his gun.

Unlike the petitioner in Davis, who had no duty to retreat because at the moment he shot the victim he had a reasonable belief that the victim was pulling out a gun, Thomas had the opportunity to retreat safely when faced by only Saadia's use or threatened use of non-deadly force, but instead chose to get out of his car with and use his gun. See, e.g., People v. Richardson, 155 A.D.2d at 489, 547 N.Y.S.2d at 150 ("[T]here was ample evidence to enable the jury to find that the defendant initiated the incident, was not acting in self-defense, and, even if he was not the initial aggressor, had every opportunity to retreat safely without the use of deadly force."). Thomas was in, and then near his car and traffic was clear. (See pages 6-7 above.)

The Court cannot say that the First Department's decision that a justification charge was not warranted because Thomas "was obligated to retreat" "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)(2). Under New York law, the trial court "was under no obligation to charge justification if no reasonable view of the evidence established the elements of that defense." People v. Counts, 214 A.D.2d at 897-98, 625 N.Y.S. 2d at 698; accord, e.g., People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 678 (1982).

See also, e.g., People v. Carello, 241 A.D.2d 903, 905, 660 N.Y.S.2d 515, 516 (3d Dep't), appeal denied, 90 N.Y.2d 938, 664, N.Y.S.2d 757, 687 (1997); People v. Cleveland, 235 A.D.2d 929, 930, 653 N.Y.S.2d 425, 426 (3d Dep't), appeal denied, 89 N.Y.2d 1090, 660 N.Y.S.2d 384 (1997); People v. Mitchell, 216 A.D.2d 331, 332, 627 N.Y.S.2d 771, 772 (2d Dep't), appeal denied, 86 N.Y.S.2d 798, 632 N.Y.S.2d 512 (1995); People v. Odinga, 143 A.D.2d 202, 204, 531 N.Y.S.2d 818, 820 (2d Dep't), appeal denied, 73 N.Y.2d 853, 858, 537 N.Y.S.2d 500, 505 (1988); People v. Ruiz, 138 A.D.2d 420, 420, 525 N.Y.S.2d 702, 703 (2d Dep't 1998); People v. Acevedo, 117 A.D.2d 813, 813-14, 499 N.Y.S.2d 132, 133 (2d Dep't), appeal denied, 68 N.Y.2d 665, 505 N.Y.2d 1030 (1986); People v. Alston, 104 A.D.2d 653, 654, 480 N.Y.S.2d 115, 116 (2d Dep't 1984).

The State courts correctly found that Thomas was able to retreat safely and was not entitled to a justification defense.

3. Viewed in the Light Most Favorable to Thomas, There Was No Objective or Subjective Evidence that Saadia Was Going to Use Deadly Force Before Thomas Fatally Shot Him

In Davis v. Strack, 270 F.3d 111,129 (2d Cir. 2001), the petitioner had a reasonable belief that the victim was carrying a gun and was about to use it against him. The petitioner in Davis believed the victim always carried a gun; the victim had robbed, raped and assaulted the petitioner and others at gunpoint on several occasions, and had threatened to kill the petitioner the next time they met. The victim's motion of reaching into his waistband for what petitioner reasonably believed was a gun was sufficient, according to the Second Circuit, for petitioner to have a reasonable belief that the victim was about to use deadly force against him. Davis v. Strack, 270 F.3d at 130.

Penal Law § 35.15(2) prohibits the use of deadly physical force unless the defendant reasonably believes that the other person is using or about to use deadly physical force. Penal Law § 35.15(2). "There is no justification for the use of deadly physical force in self-defense or in defense of a third person other than as contained in Penal Law § 35.15(2)." People v. Torres, 252 A.D.2d 60, 64, 686 N.Y.S.2d 375, 378 (1st Dep't), appeal denied, 93 N.Y.2d 1028, 697 N.Y.S.2d 587 (1999). The degree of force permissible to defend oneself "is dependent upon the degree of force reasonably believed necessary to repel the attack." People v. Mothon, 284 A.D.2d 568, 570, 729 N.Y.S.2d 541, 543 (3d Dep't), appeal denied, 96 N.Y.2d 865, 730 N.Y.S.2d 40 (2001). "Under New York law, a determination of the `reasonableness' of a defendant's fear must be based on the '"circumstances"' facing a defendant or his `situation.'" Davis v. Strack, 270 F.3d at 129; see also cases cited at pages 21-25 above. The test for whether a defendant's belief that he was faced with imminent 87 N.Y.2d 430, 433-34, 639 N.Y.S.2d 1001, 1003 (1996) (citing People v. Goetz, 68 N.Y.2d 96, 115, 506 N.Y.S.2d 18, 29-30 (1986)); see also cases cited at pages 22-24 above.

The Second Circuit in Davis v. Strack divided up the situation which led to the victim's death, and focused on the "moment" of the "actual shooting" to determine if, at that moment, Davis reasonably believed the victim was about to use deadly force, and if at that moment, Davis was able to retreat. Davis v. Strack, 270 F.3d at 130. Having found that Davis reasonably believed that his victim was about to pull out a gun, the Davis court found that the evidence, viewed in the light most favorable to Davis, "easily satisfied all the elements of the justification defense under § 35.15." Davis v. Strack, 270 F.3d at 130. The same cannot be said in Thomas' case.

Even isolating only the last few moments prior to the shooting, as the Second Circuit did in Davis, and viewing the evidence in the light most favorable to Thomas — that Saadia walked over to him and "tussled" with him before Thomas fired the first shot (see page 7 above) — Thomas was not justified in using deadly physical force because there is no evidence supporting a subjective or objective belief that Saadia, who was unarmed, was about to use deadly force against Thomas. At most, Saadia, was going to use physical force to fight with Thomas. By the express terms of New York's justification statute, deadly force can only be used if a person "reasonably believes that such other person is using or is about to use deadly physical force." Fear of mere physical force even from a larger person, is insufficient to invoke the justification defense. Penal Law § 35.15(2); see, e.g., Brown v. Artuz, 124 F.3d 73, 71 (2d Cir. 1997) (quoted at page 31 fn. 33 above); People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18 (dismissal of indictment reversed and indictment reinstated where Goetz shot four youths who approached him on subway and demanded money); People v. Stridiron, 33 N.Y.2d 287, 290-92, 352 N.Y.S.2d 179, 181-82 (1973) ("[D]efendant was not justified in [using a knife and] defending himself by use of deadly force" even though victim and victim's companions initiated argument, punched defendant in the face, swung a chair at him, and struck defendant with a pool cue, because "[t]here was no showing that deadly physical force was about to be used on him and, moreover, he did not retreat before resorting to deadly force himself."); People v. Torres, 252 A.D.2d at 65, 686 N.Y.S.2d at 379 ("use of physical force [ — a punch — ] did not constitute deadly physical force so as to justify defendant's retaliatory response of taking out a knife and thrusting it at [the victim]"); People v. Hosein, 221 A.D.2d 563, 564, 634 N.Y.S.2d 491, 492 (2d Dep't 1995) ("a person is `justified' in using `deadly physical force' . . . against another only when '[h]e reasonably believes that such other person is using or about to use deadly physical force . . . .'" No justification charge was warranted where the defendant shot an unarmed victim, and "the defendant had no reason to believe that [the victim] either had a weapon or was about to use deadly physical force against him."); People v. King, 186 A.D.2d 683, 683, 588 N.Y.S.2d 429, 430 (2d Dep't 1997) (justification defense not merited where, "following a fist fight, the defendant ran after [victim] and plunged a knife into his chest . . . [because] defendant could not have had a reasonable belief that deadly physical force was about to be used upon him and, moreover, that he had every opportunity to retreat safely."); People v. Longo, 182 A.D.2d 1019, 1021, 582 N.Y.S.2d 832, 833 (3d Dep't) ("the evidence was legally sufficient to satisfy the elements of defendant's conviction and also to disprove the defense of justification beyond a reasonable doubt" even though the decedent, "the younger and bigger man, inflicted quite a few blows on defendant" because, rather than retreating, defendant "lured decedent back within range and proceeded to pull a knife on the unarmed man"), appeal denied, 80 N.Y.2d 906, 588 N.Y.S.2d 831 (1992).

C. Because The First Department Correctly Applied New York Law, There is No Federal Constitutional Issue

Because Thomas has failed to make the threshold showing that the First Department erred as a matter of state law in upholding the trial court's decision declining to charge justification, this Court need not reach the question of whether Thomas' due process rights were violated. See, e.g., Davis v. Strack, 270 F.3d 111, 123-24 (2d Cir. 2001) (quoted at pages 19-21 above); United States ex rel. Herrington v. Mancusi, 415 F.2d 205, 211 (2d Cir. 1969) ("Since petitioner . . . has not established that under New York law, as it now stands, the [trial court] lacked jurisdiction over his case, we do not reach his due process claim on the merits."); Holden v. Miller, 00 Civ. 0926, 2000 WL 1121551 at *17 (S.D.N.Y. Aug. 8, 2000) (Peck, M.J.); Evans v. Artuz, 68 F. Supp.2d 188, 197 (E.D.N.Y. 1999) ("petitioner cannot show that the [state] court's justification charge was erroneous under state law, and thus cannot carry the heavier burden of establishing a violation of constitutional due process."); McEachin v. Ross, 951 F. Supp. 478, 483-84 (S.D.N.Y. 1997) (not reaching due process analysis because the state court's jury instructions were proper); Ellison v. Hoke, No. 93 CV 3048, 1995 WL 561344 at * 1 (E.D.N.Y. Sept. 15, 1995) (same); Styles v. VanZandt, 94 Civ. 1863, 1995 WL 326445 at * 8-9 (S.D.N.Y. May 31, 1995) (same), aff'd mem., 101 F.3d 684 (2d Cir.), cert. denied, 519 U.S. 936, 117 S.Ct. 313 (1996). Accordingly, Thomas' habeas petition should be denied.

CONCLUSION

For the reasons set forth above, the Court should deny Thomas' habeas corpus petition.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Barbara S. Jones, 40 Centre Street, Room 2103, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Jones. Failure to file objections will result in a waiver of those objections Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).


Summaries of

Thomas v. Duncan

United States District Court, S.D. New York
Dec 21, 2001
01 Civ. 6791 (BSJ) (AJP) (S.D.N.Y. Dec. 21, 2001)
Case details for

Thomas v. Duncan

Case Details

Full title:DARRELL THOMAS, Petitioner, v. GEORGE DUNCAN, Superintendent, Great Meadow…

Court:United States District Court, S.D. New York

Date published: Dec 21, 2001

Citations

01 Civ. 6791 (BSJ) (AJP) (S.D.N.Y. Dec. 21, 2001)

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