     11-3617
     Sanchez v. Lee
 1
 2                         UNITED STATES COURT OF APPEALS
 3                             FOR THE SECOND CIRCUIT
 4
 5                              SUMMARY ORDER
 6
 7   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
 8   TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
 9   AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND
10   THIS COURT’S LOCAL RULE 32.1. WHEN CITING A SUMMARY ORDER IN A
11   DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
12   FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
13   “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
14   OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
15
16        At a stated term of the United States Court of Appeals for
17   the Second Circuit, held at the Thurgood Marshall United States
18   Courthouse, 40 Foley Square, in the City of New York, on the 25th
19   day of January, two thousand thirteen.
20
21   PRESENT:
22
23         John M. Walker, Jr.,
24         Robert A. Katzmann,
25         Debra Ann Livingston,
26                   Circuit Judges.
27
28   -------------------------------------------X
29
30   STEVEN SANCHEZ,
31
32                     Petitioner-Appellant,
33
34                - v. -                              No. 11-3617-pr
35
36   WILLIAM LEE, Superintendent, Green Haven Correctional Facility,
37
38                     Respondent-Appellee.
39
40   -------------------------------------------X
41
42   FOR APPELLANT:                    MATTHEW L. MAZUR (Benjamin E.
43                                     Rosenberg on the brief), Dechert
44                                     LLP, New York, NY; Richard M.
45                                     Greenberg, Office of the Appellate
46                                     Defender, New York, NY, for
47                                     Petitioner-Appellant.
48
 1   FOR APPELLEE:                   JUSTIN J. BRAUN, Bronx County
 2                                   District Attorney’s Office, Bronx,
 3                                   NY, for Respondent-Appellee.
 4
 5
 6        Appeal from a judgment of the United States District Court

 7   for the Southern District of New York (P. Kevin Castel, Judge).

 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 9   DECREED that the district court’s judgment is AFFIRMED.

10        Steven Sanchez appeals from the district court’s denial of

11   his petition for habeas corpus following his conviction of

12   depraved indifference murder.   Sanchez argues that despite the

13   fact that his motion is procedurally barred because he failed to

14   preserve a legal insufficiency argument in the state courts, that

15   this Court should find that he is “actually innocent” of depraved

16   indifference murder and therefore consider his legal sufficiency

17   argument on the merits.   The district court, adopting a

18   magistrate judge’s report and recommendation, held that Sanchez

19   could not meet the requirements for “actual innocence” and denied

20   his petition.   See Sanchez v. Lee, 2011 WL 3477314, No. 10-cv-

21   7719 (S.D.N.Y. Aug. 8, 2011).

22        The following evidence was presented against Sanchez at

23   trial.   At approximately 4 a.m. on July 13, 2002, Sanchez called

24   his girlfriend Jessica Herrera to tell her to come to his

25   mother’s house.   She agreed.   After 45 minutes, when Herrera did

26   not arrive, he tried to call her repeatedly, finally reaching her

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 1   after 6 a.m.   Herrera told Sanchez that she was at a friend’s

 2   house, but on her way to his mother’s home.   Herrera and a friend

 3   then got into the backseat of a four-door sedan driven by Gregory

 4   Bright with Jason Maldonado in the passenger seat.   Bright drove

 5   them to an intersection of the street where Sanchez’s mother’s

 6   house was located.

 7        Sanchez called Herrera from his mother’s while she was in

 8   the car, telling her that he was upset and angry with her for not

 9   coming over when she said she would.    He decided to wait for her

10   outside.   Sanchez didn’t feel safe outside without protection, in

11   part due to his cousin’s murder during a confrontation over a

12   girl and because he had been stabbed some years earlier.    Before

13   leaving the house, he went to the kitchen and placed the “biggest

14   knife” he could find in his jeans pocket for protection.      When

15   Herrera arrived, Sanchez and Herrera started yelling at one

16   another, and Sanchez at one point covered her mouth with his

17   hand, but the testimony differs about what happened next.

18   Maldonado got out of the car.   Bright testified that Maldonado

19   started to throw a punch, but then “arched a little bit” and then

20   sat back in the passenger seat.    He told Bright to take him to

21   the hospital because he had been stabbed.   Herrera testified that

22   Maldonado, after Sanchez put his hand over Rivera’s mouth, asked

23   Sanchez “what the fuck are you doing?” and started fighting with

24   Sanchez.   According to Herrera, the two men scuffled, then

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 1   stopped suddenly, at which point she could see a knife in the

 2   side of Maldonado’s abdomen.    Sanchez testified that Maldonado

 3   got out of the car and asked “Yo son, what the fuck you doing?”

 4   When Maldonado punched him, Sanchez testified that he tried to

 5   cover himself and then felt a second person hitting him.       He said

 6   that he experienced flashbacks to the time he had been stabbed,

 7   so took out the knife and waved it around to scare the men away

 8   when he felt them both on top of him.    Sanchez said that

 9   Maldonado “kept on towards me, so as he kept on . . . I stabbed

10   him.”    Maldonado later died at the hospital.   The Medical

11   Examiner determined that Maldonado suffered a single “V-shaped”

12   stab wound that could have resulted from twisting of the knife or

13   from Maldonado swinging his arm as he was stabbed.

14           Sanchez was indicted and charged with intentional murder and

15   depraved indifference murder under New York Penal Law §§ 125.25

16   (1) and (2).    The mens rea required to convict a person of

17   depraved indifference murder was different at the time of

18   Sanchez’s trial than it is now.    Sanchez was convicted on March

19   17, 2004, under the mens rea standard articulated in People v.

20   Register, 60 N.Y.2d 270 (1983).     A recent opinion by this court

21   summarized the Register requirements:

22                Under the so-called “Register regime,” in
23                order to convict a defendant on a charge of
24                depraved-indifference murder, a jury was
25                required to find, beyond a reasonable doubt,


                                       -4-
 1                that the defendant “(1) recklessly engaged in
 2                conduct (2) which created a grave risk of
 3                death to another person (3) thereby causing
 4                the death of another person (4) under
 5                circumstances evincing a depraved
 6                indifference to human life.” Policano v.
 7                Herbert, 7 N.Y.3d 588, 602 (2006)
 8                (summarizing the law as of June 28, 2001).
 9                The mens rea for depraved-indifference murder
10                was recklessness, and the statutory phrase
11                “‘under circumstances evincing a depraved
12                indifference to human life’ defined the
13                factual setting, viewed objectively, in which
14                the risk-creating conduct occurred.” Id.

15   Epps v. Poole, 687 F.3d 46, 51 (2d Cir. 2012).     In a series of

16   cases between 2003 and 2006, including People v. Hafeez, 100

17   N.Y.2d 253 (2003), People v. Gonzalez, 1 N.Y.3d 464 (2004),

18   People v. Payne, 3 N.Y.3d 266 (2004), People v. Suarez, 6 N.Y.3d

19   202 (2005), and People v. Feingold, 7 N.Y.3d 288 (2006), the law

20   incrementally changed, and in Feingold, the New York Court of

21   Appeals overturned the rule in Register by changing the mens rea

22   requirement from recklessness to depraved indifference to human

23   life.    See Epps, 687 F.3d at 51-52.

24           The substance of New York’s depraved indifference murder law

25   is not at issue in this case, which focuses instead on

26   petitioners’ procedural rights to federal habeas review.     This

27   court reviews a district court’s denial of a habeas corpus

28   petition de novo.     Hawthorne v. Schneiderman, 695 F.3d 192, 195

29   (2d Cir. 2012).    On appeal, Sanchez does not argue that he


                                       -5-
 1   properly preserved his legal insufficiency argument in the state

 2   court system; rather, he asserts only that his case falls in the

 3   small group of cases to which an equitable exception for

 4   “miscarriage of justice” applies.

 5        In most cases, a petitioner who is procedurally barred from

 6   making a legal insufficiency argument in state court must show

 7   “cause” for and “prejudice” from the procedural default in order

 8   to obtain federal habeas review of a defaulted constitutional

 9   claim.   See Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

10   Although “for the most part, ‘victims of a fundamental

11   miscarriage of justice will meet the cause-and-prejudice

12   standard,’ . . . where a constitutional violation has probably

13   resulted in the conviction of one who is actually innocent, a

14   federal habeas court may grant the writ even in the absence of a

15   showing of cause for the procedural default.” Murray v. Carrier,

16   477 U.S. 478, 496 (1986) (internal citations omitted).

17        Establishing actual innocence is not easy.     “To establish

18   actual innocence, petitioner must demonstrate that, ‘in light of

19   all the evidence,’ ‘it is more likely than not that no reasonable

20   juror would have convicted him.’”      Bousley v. United States, 523

21   U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-

22   28 (1995)).   Actual innocence requires “factual innocence, not

23   mere legal insufficiency.” Id.   A claim of actual innocence “is


                                      -6-
 1   not itself a constitutional claim, but instead a gateway through

 2   which a habeas petitioner must pass to have his otherwise barred

 3   constitutional claim considered on the merits.”    Herrera v.

 4   Collins, 506 U.S. 390, 404 (1993).

 5        For the purposes of this order, we assume without deciding

 6   that Sanchez’s procedural default could be excused.    Even with

 7   this assumption, however, Sanchez cannot make out a valid legal

 8   insufficiency claim.1    In cases challenging the sufficiency of

 9   the evidence of a state-court criminal conviction, “the relevant

10   question is whether, after viewing the evidence in the light most

11   favorable to the prosecution, any rational trier of fact could

12   have found the essential elements of the crime beyond a

13   reasonable doubt.”   Jackson v. Virginia, 443 U.S. 307, 319

14   (1979).    On the trial record, a rational trier of fact could have

15   found Sanchez guilty of depraved indifference murder under the

16   Feingold standard.    Before going outside to wait for Herrera,

17   Sanchez chose the “biggest knife” he could find in his mother’s

18   kitchen.   Although there is no evidence that Maldonado or Bright

19   had any weapons, Sanchez pulled out the knife and “blindly waved”

20   it in their direction.    He did not deliberately stab Maldonado in

21   the heart or another location more likely to cause death, but


     1
        Sanchez contends that the deferential standard set forth in 28
     U.S.C. § 2254(d) does not apply in this case. Since we conclude
     that Sanchez’s claim fails even without applying § 2254(d), we
     need not reach the issue.

                                      -7-
 1   instead stabbed him in the side, creating a wound several inches

 2   deep.    After the stabbing, Sanchez did not pursue Maldonado to

 3   stab him further to try to kill him, but instead fled first to

 4   his mother’s house, then to a friend’s house, before returning

 5   and being arrested.    As in this Court’s recent decision in

 6   Gutierrez, “a reasonable jury could conclude that [Sanchez]

 7   wielded his knife haphazardly, without intending to kill anyone,

 8   but nevertheless indifferent as to whether he inflicted fatal

 9   injuries.” Gutierrez v. Smith, 2012 WL 6123764, No. 10-4478 (2d

10   Cir. Dec. 11, 2012), at *9.

11           For the foregoing reasons, the district court’s judgment is

12   AFFIRMED.
13
14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe, Clerk of Court
16
17




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