     12-2596
     Kinley v. Artus



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 27th day of June, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                CHESTER J. STRAUB,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       Robert Kinley,
13                Petitioner-Appellant,
14
15                     -v.-                                              12-2596
16
17       Dale A. Artus,
18                Respondent-Appellee.
19
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        SALLY WASSERMAN, Law Office of
23                                             Sally Wasserman, New York, New
24                                             York.
25
26       FOR APPELLEES:                        RUTH E. ROSS (Leonard Joblove,
27                                             Solomon Neubort, on the brief),

                                                  1
 1                              Assistant District Attorneys,
 2                              for Charles J. Hynes, District
 3                              Attorney Kings County, Brooklyn,
 4                              New York.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the Eastern District of New York (Brodie, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13        Robert Kinley appeals from the denial of his petition
14   for a writ of habeas corpus challenging his New York State
15   conviction, following a jury trial, for depraved
16   indifference murder. See N.Y. Penal Law § 125.25[2].
17   Relying on a New York Court of Appeals decision
18   reinterpreting the elements of depraved indifference murder,
19   Kinley argues that the evidence at trial was insufficient as
20   a matter of law. See People v. Feingold, 7 N.Y.3d 288
21   (2006). The evidence, Kinley asserts, showed that he acted
22   with the specific intent to kill rather than with depraved
23   indifference to human life.
24
25        We granted a certificate of appealability to decide
26   “(1) whether, despite his procedural default in state court,
27   Appellant may raise his legal sufficiency of the evidence
28   claim, pursuant to the fundamental miscarriage of justice
29   exception in Murray v. Carrier, 477 U.S. 478, 496 (1986);
30   and (2) if the Appellant satisfies the fundamental
31   miscarriage of justice exception and may raise his claim,
32   whether Appellant’s conviction for depraved indifference
33   murder was supported by legally sufficient evidence.”
34
35        We consider the miscarriage-of-justice question de
36   novo. See Cornell v. Kirkpatrick, 665 F.3d 369, 374 (2d
37   Cir. 2011). We assume the parties’ familiarity with the
38   facts and record of prior proceedings.
39
40        “As a general rule, claims forfeited under state law
41   may support federal habeas relief only if the prisoner
42   demonstrates cause for the default and prejudice from the
43   asserted error.” House v. Bell, 547 U.S. 518, 536 (2006).
44   “The bar is not, however, unqualified.” Id. The Supreme
45   Court has recognized “a miscarriage-of-justice exception” in
46   circumstances necessary to “correct[] a fundamentally unjust
47   incarceration.” Id. (internal quotation marks omitted).

                                  2
 1   Miscarriage occurs only “in an extraordinary case, where a
 2   constitutional violation has probably resulted in the
 3   conviction of one who is actually innocent.” Carrier, 477
 4   U.S. at 496. “‘[A]ctual innocence’ means factual innocence,
 5   not mere legal insufficiency.” Dunham v. Travis, 313 F.3d
 6   724, 730 (2d Cir. 2002) (alteration in original) (quoting
 7   Bousley v. United States, 523 U.S. 614, 623 (1998))
 8   (internal quotation marks omitted). Moreover, that factual
 9   innocence requirement applies not only to the count of
10   conviction, but also to charges that are equally or more
11   serious. See Bousley, 523 U.S. at 624 (holding, in context
12   of challenged conviction based on guilty plea, that
13   petitioner’s burden to demonstrate actual innocence extends
14   to more serious charges forgone by government in course of
15   plea bargaining).
16
17        Kinley does not argue that he is actually innocent of
18   killing his victim, Nathalie Lodge. Instead, he argues that
19   it would be a miscarriage of justice to reject his
20   sufficiency claim as procedurally barred because he is
21   actually innocent of the particular crime of depraved
22   indifference murder, which requires the precise mens rea
23   outlined in Feingold. The verdict, however, is consistent
24   with the defense advanced at trial that Kinley had killed
25   Lodge by accident. Only afterward, on appeal, did the
26   defense argue that “there was no possible explanation for
27   the use of the belt around Lodge’s neck and the plastic bag
28   over her head that could even remotely have suggested
29   accident or a mens rea other than intentional.”
30
31        There is nothing “fundamentally unjust,” House, 547
32   U.S. at 536 (internal quotation marks omitted), about
33   Kinley’s continued incarceration for what he indisputably
34   did: kill Nathalie Lodge by inflicting blunt impact head
35   trauma and suffocating her. Whether acting intentionally or
36   with a depraved indifference, Kinley committed second degree
37   murder under New York criminal law, circumstances that do
38   not demonstrate the actual innocence requiring us to address
39   the merits of Kinley’s defaulted sufficiency claim in order
40   to avoid manifest injustice. Garbutt v. Conway, 668 F.3d
41   79, 83 (2d Cir. 2012) (per curiam) (concluding that a
42   miscarriage of justice did not exist where the petitioner
43   was convicted of depraved indifference murder and argued
44   that he should have been convicted of intentional murder);
45   see also Calderon v. Thompson, 523 U.S. 538, 559 (1998)
46   (“[T]he miscarriage of justice exception is concerned with
47   actual as compared to legal innocence.” (alteration in

                                  3
 1   original) (internal quotation marks omitted)); Dunham, 313
 2   F.3d at 730. In any event, the verdict of guilty on
 3   depraved indifference murder is consistent with the defense
 4   advanced at trial. Kinley told the jury that, in assaulting
 5   Lodge, he never intended to kill her and went to bed
 6   thinking that she was still alive. To the extent this
 7   testimony could have raised a reasonable doubt as to
 8   Kinley’s specific murderous intent, a reasonable jury could
 9   nevertheless have found that for him to go to bed when Lodge
10   was no longer moving after a brutal assault manifested a
11   mens rea of depraved indifference. See People v. Suarez, 6
12   N.Y.3d 202, 212 (2005) (stating that abandoning “helpless
13   and vulnerable victim” who is “highly likely to die . . . --
14   arising from a situation created by the defendant--properly
15   establishes depraved indifference murder”); see also
16   Garbutt, 668 F.3d at 82 (rejecting sufficiency claim because
17   jury could have inferred from fact that defendant ran away
18   without ascertaining if victim had died that he had not
19   intended to kill her).
20
21        For the foregoing reasons, and finding no merit in
22   Kinley’s other arguments, we hereby AFFIRM the judgment of
23   the district court.
24
25                              FOR THE COURT:
26                              CATHERINE O’HAGAN WOLFE, CLERK
27




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