         09-4887-pr
         Jones v. Poole

                          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 Daniel Patrick                     Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                     City of
 4       New York, on the 22 nd day of December, two thousand                   ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOSEPH M. McLAUGHLIN,
 9                PIERRE N. LEVAL,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       JAMIE LAMONT JONES,
14                Petitioner-Appellant,
15
16                    -v.-                                               09-4887-pr
17
18       THOMAS POOLE, Superintendent,
19                Respondent-Appellee.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                         Susan V. Tipograph, New York,
23                                              New York.
24
25       FOR APPELLEE:                          Leilani J. Rodriguez, Assistant
26                                              Attorney General, Of Counsel
27                                              (Roseann B. MacKechnie, Deputy
28                                              Solicitor General for Criminal
29                                              Matters and Barbara D.
30                                              Underwood, Solicitor General, on
 1                              the brief), for Andrew M. Cuomo,
 2                              Attorney General for the State
 3                              of New York, New York, New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Southern District of New York (Preska, C.J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Jamie Lamont Jones appeals from a judgment of the
13   United States District Court for the Southern District of
14   New York (Preska, C.J.), denying his petition for a writ of
15   habeas corpus pursuant to 28 U.S.C. § 2254. Jones
16   challenges his conviction in New York State Supreme Court
17   for assault, N.Y. Penal Law § 120.10(3), and criminal
18   possession of a weapon, N.Y. Penal Law § 265.03(2), on three
19   grounds. We assume the parties’ familiarity with the
20   underlying facts, the procedural history, and the issues
21   presented for review.
22
23        Pursuant to the Antiterrorism and Effective Death
24   Penalty Act of 1996 (“AEDPA”), “persons in state custody
25   because of a state court conviction may petition for federal
26   habeas corpus relief if their custody is ‘in violation of
27   the Constitution or laws or treaties of the United States.’”
28   Mannix v. Phillips, 619 F.3d 187, 195 (2d Cir. 2010)
29   (quoting 28 U.S.C. § 2254(a)). We exercise de novo review
30   over the district court’s denial of a petition for a writ of
31   habeas corpus. Jenkins v. Artuz, 294 F.3d 284, 290 (2d Cir.
32   2002).
33
34   [1] Jones argues that the state trial court’s refusal to
35   instruct the jury on a justification defense constituted a
36   denial of due process. Even assuming that Jones “fairly
37   presented” his due process claim to the state courts, see
38   Jackson v. Edwards, 404 F.3d 612, 618-19 (2d Cir. 2005),
39   this contention is without merit. On the record before us,
40   Jones cannot show that he was “entitled to a justification
41   charge” and he certainly cannot show that “the state court’s
42   contrary conclusion constitute[d] an unreasonable
43   application of clear Supreme Court law.” Id. at 621. It is
44   well established that “due process does not require the
45   giving of a jury instruction when such charge is not
46   supported by the evidence.” Blazic v. Henderson, 900 F.2d
47   534, 541 (2d Cir. 1990). Here, Jones’ defense at trial was

                                  2
 1   that he was not involved in the shooting that formed the
 2   basis for his conviction; trial counsel did not argue that
 3   he was involved, but was justified in committing the
 4   shooting.
 5
 6   [2] On appeal to this Court, Jones concedes that the state
 7   trial “court did correctly state the law on accessorial
 8   liability in both its final and supplemental jury
 9   instructions.” Pet’r’s Br. 37. But, Jones argues that due
10   process was violated because the state court judge employed
11   a series of prejudicial hypothetical examples. Pet’r’s Br.
12   34-36. We conclude that, with respect to the charge on
13   accessorial liability, Jones’ due process challenge was not
14   fairly presented to the state courts. See Daye v. Attorney
15   Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Jones did
16   not invoke federal case law; or rely on state case law that
17   employs constitutional analysis; or assert a claim “in terms
18   so particular as to call to mind a specific right protected
19   by the Constitution”; or allege “a pattern of facts that is
20   well within the mainstream of constitutional litigation.”
21   Id. Although this Court has held that “a hypothetical that
22   assumes guilt where defendant asserts his innocence is
23   disfavored,” United States v. Dove, 916 F.2d 41, 46 (2d Cir.
24   1990), the Supreme Court has not ruled that the use of such
25   hypothetical examples is a due process violation.
26   Therefore, we could not conclude that such a challenge is
27   within the mainstream of constitutional litigation. Jones is
28   thus barred from obtaining relief on this claim in this
29   Court.
30
31        Moreover, even if we were to reach the merits of this
32   claim, we would not grant relief. In this context, it is
33   not enough for Jones to show that some of the examples
34   given, or language used, by the trial judge were
35   “undesirable, erroneous, or even universally condemned.”
36   Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001) (quoting
37   Cupp v. Naughten, 414 U.S. 141, 146 (1973) (internal
38   quotation marks omitted)).
39
40   [3] Jones maintains that he is entitled to habeas relief
41   because statements made by the state trial court operated to
42   confuse the jury about the state’s burden of proof or to
43   diminish its burden to something less than beyond a
44   reasonable doubt. Jones argues that the trial judge’s
45   instructions violated his right to due process, specifically



                                  3
 1   citing the so-called “two inferences” charge, 1 and the
 2   instructions to the jury that when it “finds a fact, it has
 3   to be done fifty-one to forty-nine” and the standard of
 4   “beyond a reasonable doubt” applies only to elements of the
 5   charged crimes and to facts on which guilt “hinges” or which
 6   are “crucial” to establishing guilt or innocence. App. 438-
 7   39, 444-45, 474, 514.
 8
 9        Both this Court and New York State courts have
10   repeatedly disapproved of the “two inferences” instruction,
11   see, e.g., United States v. Inserra, 34 F.3d 83, 91 (2d Cir.
12   1994); United States v. Attanasio, 870 F.2d 809, 818 (2d
13   Cir. 1989); People v. Johnson, 783 N.Y.S.2d 5, 7 (App. Div.
14   1st Dep’t 2004), and we again register disapproval.
15   However, the trial judge made numerous references to the
16   fact that the state bore the burden of proving Jones’ guilt
17   beyond a reasonable doubt, so we conclude that the trial
18   court’s instructions, “taken as a whole . . . correctly
19   conve[yed] the concept of reasonable doubt to the jury.”
20   Victor v. Nebraska, 511 U.S. 1, 5 (1994) (internal quotation
21   marks omitted).
22
23        With respect to the trial court’s instructions on
24   factfinding, these statements were “confusing” and
25   “undesirable,” Cupp, 414 U.S. at 146; see also United States
26   v. Gatzonis, 805 F.2d 72, 74 (2d Cir. 1986) (per curiam),
27   but we conclude that they did not amount to a due process
28   violation. Indeed, our Court has previously observed that
29   the beyond a reasonable doubt “burden does not operate upon
30   each of the many subsidiary facts on which the prosecution
31   may collectively rely to persuade the jury that a particular
32   element has been established beyond a reasonable doubt.”
33   United States v. Viafara-Rodriguez, 729 F.2d 912, 913 (2d
34   Cir. 1984). Thus, taken as a whole, the charge (though
35   undesirable) adequately conveyed the prosecution’s burden to
36   the jury, see United States v. Delibac, 925 F.2d 610, 614
37   (2d Cir. 1991), and was not contrary to, or an unreasonable
38   application of, clearly established Supreme Court precedent,
39   see Schriro v. Landrigan, 550 U.S. 465, 473 (2007).


         1
           The “two inferences” charge given by the state trial
     judge is as follows: “where two factual inferences may be
     drawn from the evidence, . . . one factual inference
     consistent with guilt and the other factual inference
     consistent with innocence, any defendant is entitled to the
     inference of innocence.” App. 437-38.

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1
2        Having reviewed all of the arguments presented by Jones
3   on appeal, we hereby AFFIRM the judgment of the district
4   court denying Jones’ petition for a writ of habeas corpus.
5
6
7                              FOR THE COURT:
8                              CATHERINE O’HAGAN WOLFE, CLERK
9




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