     04-5518-pr
     Policano v. Herbert



1                          UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3                                August Term, 2004

4    (Argued: July 11, 2005                 Final Submission:   June 4, 2007

5                          Decided:   September 19, 2007)

6                              Docket No. 04-5518-pr

7                    -------------------------------------

8                                 DAVID POLICANO,

9                               Petitioner-Appellee,

10                                      - v -

11                               VICTOR T. HERBERT,

12                             Respondent-Appellant.



13                   -------------------------------------


14   Before:     POOLER and SACK, Circuit Judges, and GARAUFIS, District
15               Judge.*

16               The United States District Court for the Eastern

17   District of New York (John Gleeson, Judge) granted the petitioner

18   habeas corpus relief under 28 U.S.C. § 2254 on the ground that

19   the state violated his constitutional right to due process

20   because the evidence of his guilt was insufficient to support his

21   conviction in New York Supreme Court, Kings County for depraved


           *
             The Hon. Nicholas G. Garaufis, of the United States
     District Court for the Eastern District of New York, sitting by
     designation.
1    indifference murder under N.Y. Penal Law § 125.25(2).    In an

2    earlier opinion, Policano v. Herbert, 430 F.3d 82 (2d Cir. 2005),

3    this panel concluded that the judgment of the district court

4    should be affirmed.    In light of the answer of the New York Court

5    of Appeals to a question of law subsequently certified to it by

6    this Court, as well as other factors, that opinion is withdrawn,

7    and the judgment of the district court is:

8              Reversed, and the case remanded.

 9                                         RHEA A. GROB, Assistant
10                                         District Attorney (Charles J.
11                                         Hynes, District Attorney Kings
12                                         County, Leonard Joblove & Ann
13                                         Bordley, Assistant District
14                                         Attorneys, of counsel),
15                                         Brooklyn, NY, for Respondent-
16                                         Appellant.

17                                         Richard Ware Levitt, New York,
18                                         NY, for Petitioner-Appellee.
19   SACK, Circuit Judge:

20                                    I.

21             David Policano, acting pro se, brought this application

22   for habeas corpus under 28 U.S.C. § 2254 in the United States

23   District Court for the Eastern District of New York.    He sought

24   relief from his conviction in New York Supreme Court, Kings

25   County, of depraved indifference murder under N.Y. Penal Law

26   § 125.25(2).   The conviction had been affirmed in the state

27   courts by the Appellate Division.     People v. Policano, 277 A.D.2d

28   331, 715 N.Y.S.2d 880 (2d Dep't 2000).    His application for

29   permission to appeal that decision to the New York Court of



                                       2
1    Appeals had been denied.    People v. Policano, 96 N.Y.2d 786, 749

2    N.E.2d 220, 725 N.Y.S.2d 651 (2001) (Smith, J.).

3                It was undisputed at trial that Policano had threatened

4    to retaliate against one Terry Phillips after Phillips hit

5    Policano in the head with a metal pipe, sending him to the

6    hospital.    On the evening of January 27, 1997, just six days

7    after the incident, at a neighborhood bus stop, Phillips was shot

8    at close range, three times in the head and neck, and once in the

9    leg, killing him.    One witness to the event, who knew both

10   Policano and Phillips, testified that he saw Policano at the

11   scene and at the time of the shooting.    Although the witness

12   could not see Policano's face at the moment of the shooting, he

13   identified Policano on the basis of his presence there and his

14   clothing.    Two other witnesses said they saw a person running

15   from the scene carrying a white bag.    They described that person

16   as, inter alia, slender and a dark-skinned black man.       Policano

17   was neither.    Policano testified in his own defense, among other

18   things, that he was elsewhere at the time of the crime.

19               The trial judge charged the jury, inter alia:

20               As you have become aware during the course of
21               this trial a main issue in this trial is the
22               identification of the defendant, David
23               Palicano [sic],1 as the person who committed
24               the crimes of murder second degree on or
25               about January 27, 1997. The People have the
26               burden to prove to your satisfaction beyond a
27               reasonable doubt not only all of the
28               essential element[s] of the crime as I have

          1
             The defendant was referred to as "Palicano" throughout
     the trial transcript, until sentencing.

                                       3
1              instructed you, but also that the defendant,
2              David Palicano, is the person who committed
3              them.
4    Trial Tr. at 561.

5              The court, over the objection of the defendant, who had

6    sought dismissal of the depraved indifference count, instructed

7    the jury at some length as to the elements of depraved

8    indifference murder, under the first count in the indictment,

9    concluding:   "On [the] other hand, if you find that the People

10   have not proven beyond a reasonable doubt any one or more of

11   those elements, you must find the defendant not guilty of the

12   crime of murder in the second degree as charged in the first

13   count."   Id. at 569.   The court then instructed the jury on count

14   two, intentional murder in the second degree.    Id. at 569-71.

15             After several hours of deliberation, the jury returned

16   a verdict of guilty on count one, depraved indifference.    Id. at

17   574-75.   The jurors were polled, id. at 575-76, and then excused,

18   id. at 576-77.   They did not render a verdict on count two, the

19   intentional murder count.

20                                    II.

21             After appointing counsel to represent Policano and

22   having received briefing and argument, the district court (John

23   Gleeson, Judge) granted Policano's petition for habeas relief.

24   Policano v. Herbert, 2004 WL 1960203, 2004 U.S. Dist. LEXIS 17785

25   (E.D.N.Y. Sept. 7, 2004) ("Policano I").    In Policano v. Herbert,

26   430 F.3d 82 (2d Cir. 2005) ("Policano II"), an opinion in which

27   we affirmed the judgment of the district court, we summarized:

                                       4
1    "The district court concluded that Policano's petition for habeas

2    corpus must be granted because 'according to the evidence, he

3    intentionally committed [Phillips's homicide] if he committed it

4    at all.'   We agree."   430 F.3d at 88-89 (quoting Policano I, 2004

5    WL 1960203, at *2, 2004 U.S. Dist. LEXIS 17785, at *4).      In doing

6    so, we concluded that under New York State law,

 7              the rule that depraved-indifference murder
 8              and intentional murder are mutually exclusive
 9              crimes was established well before Policano's
10              trial and state appeal. See [People v.
11              Gallagher, 69 N.Y.2d 525, 529, 516 N.Y.S.2d
12              174, 175, 508 N.E.2d 909, 910 (1987)].
13              Gallagher set forth clearly the standard we
14              apply today, stating in plain language that a
15              defendant has not committed depraved
16              indifference murder if he "acts intentionally
17              in shooting a person to death." Id.
18   430 F.3d at 92.

19              In the course of considering the appeal, we noted that

20   one of the respondent's arguments had been made for the first

21   time before us on appeal -- that the depraved indifference murder

22   charge was buttressed by eyewitness trial testimony to the effect

23   that shortly before the Phillips murder, Policano had shared a

24   "dime [ten dollar] bag" of "crack" cocaine with two other

25   people.2   Applying Gallagher, however, we could not find "any

          2
             The evidence was contained in testimony elicited in
     response to questions by Policano's lawyer during the cross-
     examination of witness Jimmy Sprye, in whose Fort Greene
     apartment Policano spent part of the evening of the murder.

               Q: When they [Policano and a woman] came in, you
          started smoking crack?
                A:   That's what that day [sic], yeah.
                Q:   How long are you smoking crack before they

                                       5
1    evidence in the record to justify an inference that such an

2    exposure to drugs would have so intoxicated Policano forty-five

3    minutes or more later that he could have shot Phillips three

4    times in the head at close range without meaning to kill him.     We

5    therefore reject[ed] the state's argument in this regard."      Id.

6    at 91.

7                 The mandate in Policano II never issued.   Instead, on

8    June 21, 2006, we certified to the New York Court of Appeals

9    principally the following question:

10                On March 30, 2001 (the date on which
11                petitioner Policano's conviction became
12                final), under the law of the State of New
13                York as established by, inter alia, People v.
14                Gallagher, 69 N.Y.2d 525, 516 N.Y.S.2d 174,
15                508 N.E.2d 909 (1987), where the evidence
16                produced at trial indicated that if the
17                defendant committed the homicide at all, he
18                committed it with the conscious objective of
19                killing the victim, would a jury be permitted
20                to find that the elements of depraved
21                indifference murder were satisfied beyond a
22                reasonable doubt?




          left?
               A: Before they left, I don't know. They had
          dimes, dime bag. Three people on a dime bag, how much
          can you, I mean, how much can you smoke?
     Trial Tr. at 277-78.

                                        6
1    Policano v. Herbert, 453 F.3d 75, 76 (2d Cir. 2006).3      On the

2    same day, based largely on the fact of certification, this Court

3    denied rehearing en banc, Policano v Herbert, 453 F.3d 79 (2d Cir

4    2006) (per curiam), with five judges dissenting from the denial,

5    see id. at 80 (Raggi, J., joined by Walker, C.J., Jacobs,

6    Cabranes, and Wesley, JJ., dissenting); id. at 98 (Wesley, J.,

7    joined by Raggi, J., dissenting).

8                                    III.

9                In Policano v. Herbert, 7 N.Y.3d 588, 859 N.E.2d 484,

10   825 N.Y.S.2d 678 (2006) ("Policano III"), the New York Court of

11   Appeals responded to our certification.    The Court explained that

12   our reliance on both Gallagher and the Court's 2004 decision in

13   People v. Gonzalez, 1 N.Y.3d 464, 468, 807 N.E.2d 273, 276, 775

14   N.Y.S.2d 224, 227 (2004), had been mistaken.

15               [At the relevant time,] Gallagher was read as
16               limited to charging procedure. Indeed, we
17               said as much ourselves in [People v. Sanchez,
18               98 N.Y.2d 373, 378, 748 N.Y.S.2d 312, 314,

           3
               The other questions we certified were:
                 2. At the time Policano's conviction became
                 final, what were the established elements of
                 depraved indifference murder?
                 3. Does the interpretation of N.Y. Penal Law
                 § 125.25(1) and (2) set forth in People v.
                 Payne, 3 N.Y.3d 266, 270, 819 N.E.2d 634, 786
                 N.Y.S.2d 116, 117 (2004) and People v.
                 Gonzalez, 1 N.Y.3d 464, 467, 807 N.E.2d 273,
                 775 N.Y.S.2d 224, 226 (2004), state the
                 correct interpretation of the law of New York
                 with respect to the elements of depraved
                 indifference murder on the date Policano's
                 conviction became final?
     Id.
                                       7
1                 777 N.E.2d 204, 206 (2002)] when we concluded
2                 that strong proof of intent did not foreclose
3                 the jury from finding recklessness and
4                 depraved indifference. Even though the
5                 defendant in Sanchez pressed arguments of
6                 legal insufficiency based on Gallagher, the
7                 Sanchez majority did not mention Gallagher.
8    Id. at 600 (internal citations altered and omitted).      At the time

9    the defendant's conviction became final, it was People v.

10   Register, 60 N.Y.2d 270, 457 N.E.2d 704, 469 N.Y.S.2d 599 (1983),

11   cert. denied, 466 U.S. 953 (1984), -- not Gallagher -- that

12   governed the legal sufficiency of the evidence needed to

13   establish guilt for depraved indifference murder.      Policano III,

14   7 N.Y.3d at 601.     The formulation of the law established by

15   Register "remained static through [the Court's] decision in

16   [Sanchez]."     Id. at 595.   Sanchez therefore "reaffirmed

17   Register."     Id.   The Court also explained that by the time of its

18   2004 post-Sanchez decision in Gonzalez, on which we and the

19   district court had relied, the relevant law had begun to change.

20   Id. at 603.     Gonzalez, like Gallagher, therefore did not reflect

21   the applicable law for purposes of Policano's petition.

22                The Court of Appeals explained further:

23                [I]t has never been permissible in New York
24                for a jury to convict a defendant of depraved
25                indifference murder "where the evidence
26                produced at trial indicated that if the
27                defendant committed the homicide at all, he
28                committed it with the conscious objective of
29                killing the victim" (in the words of the
30                first [and principal] question). As
31                discussed at some length, however, under
32                Register -- and until we started to recast
33                "under circumstances evincing a depraved
34                indifference to human life" post-Sanchez --
35                where both intentional and depraved

                                         8
 1             indifference murder were charged in one-on-
 2             one shootings or knifings, these counts were
 3             submitted to the jury for it to sort out the
 4             defendant's state of mind unless there was
 5             absolutely no evidence whatsoever that the
 6             defendant might have acted unintentionally.
 7             That a defendant's acts virtually guaranteed
 8             the victim's death did not, in and of itself,
 9             preclude a guilty verdict on a theory of
10             depraved indifference. To the contrary and
11             as the dissenters in both Register and
12             Sanchez vociferously protested, under the
13             Register formulation the very facts
14             establishing a risk of death approaching
15             certainty and thus presenting compelling
16             circumstantial evidence of intent -- for
17             example, a point-blank shooting of the victim
18             in the head -- likewise demonstrated depraved
19             indifference. This was the law of the State
20             of New York at the time defendant's
21             conviction became final.
22   Id. at 600-01.

23             The Court of Appeals continued,
24             As the People point out, the jurors heard
25             evidence that defendant ingested crack
26             cocaine approximately 45 minutes before
27             shooting Phillips, and that the final shot to
28             his helplessly prone victim hit his thigh,
29             not a vital organ. Although there was
30             certainly reason to believe that defendant
31             may have borne a grudge against Phillips,
32             there is considerable doubt that he acted
33             with premeditation or sought out Phillips to
34             seek revenge (a factual distinction between
35             this case and Gonzalez bearing on intent);
36             the violence here seems to have erupted
37             spontaneously after a chance encounter on the
38             street. Defendant shot Phillips in the head
39             and neck three times at a range of three to
40             five feet in a public place, an urban bus
41             stop. And most critically of all, we had not
42             yet decided any of our cases cutting back on
43             Register. We had not yet even decided
44             Sanchez, which ratified Register's continued
45             authority.




                                     9
1    Id. at 601-02.4

2                                    IV.

3              "[A] federal court is prohibited from granting the

4    [application for habeas corpus] unless the state court's

5    adjudication 'resulted in a decision that was contrary to, or

6    involved an unreasonable application of, clearly established

7    Federal law, as determined by the Supreme Court.'"    Brown v.

8    Greiner, 409 F.3d 523, 533 (2d Cir. 2005) (quoting 28 U.S.C.

9    § 2254(d)).   As we have interpreted this standard, "we decide not

10   whether the state court correctly interpreted the doctrine of

11   federal law on which the claim is predicated, but rather whether

12   the state court's interpretation was unreasonable in light of the

13   holdings of the United States Supreme Court at the time."    Id.

14   "[I]n a challenge to a state criminal conviction brought under 28

15   U.S.C. § 2254 . . . the applicant is entitled to habeas corpus

16   relief if it is found that upon the record evidence adduced at

17   the trial no rational trier of fact could have found proof of

18   guilt beyond a reasonable doubt."     Jackson v. Virginia, 443 U.S.

19   307, 324 (1979).   The operative Supreme Court holding at the time

20   Policano's conviction became final was In re Winship, 397 U.S.

21   358 (1970), which announced a constitutional rule, as interpreted

22   by Jackson, "that the Due Process Clause of the Fourteenth



          4
             To paraphrase our observation about the district court's
     use of post-conviction New York State case law, the Court of
     Appeals used Sanchez as a means of understanding the applicable
     law as it existed at the time of Policano's trial and appeal.
     See Policano II, 430 F.3d at 92.
                                     10
1    Amendment protects a defendant in a criminal case against

2    conviction 'except upon proof beyond a reasonable doubt of every

3    fact necessary to constitute the crime with which he is

4    charged.'"   Jackson, 443 U.S. at 315 (quoting Winship, 397 U.S.

5    at 364).   Our review is therefore to determine whether the state

6    court adjudication is contrary to, or an unreasonable application

7    of, the Winship rule as interpreted by Jackson on a petition for

8    a writ of habeas corpus.   "[A] petitioner bears a very heavy

9    burden in convincing a federal habeas court to grant a petition

10   on the grounds of insufficiency of the evidence."    Fama v. Comm'r

11   of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000).

12                                   V.

13              If the issue to be decided today were whether, under

14   the facts as we understood them at the time of our decision in

15   Policano II or as the district court understood them at the time

16   of its decision in Policano I, we now would be required, in light

17   of the New York Court of Appeals decision in Policano III, to

18   reverse the district court's grant of Policano's application for

19   habeas relief, the answer, for us, would not be an easy one.    We

20   are still not convinced, despite the evidence relating to "crack"

21   ingestion, the shot to the thigh and other circumstances of the

22   crime, that the record as we understood it at the time of

23   Policano II, 430 F.3d at 91, included what amounts to

24   evidence that Policano might have acted unintentionally, Policano

25   III, 7 N.Y.3d at 601.



                                     11
1              That question, however, is now moot.   A rereading of

2    the trial record reveals that in addition to the evidence of

3    Policano's crack usage prior to Phillips's death, Policano

4    himself testified that he had been at a methadone clinic the

5    afternoon of the murder, Trial Tr. at 387; that late the same

6    afternoon or during the evening he "used" "three [or] four" bags

7    of heroin, id. at 390; and that he consumed some alcohol that

8    night, too, id. at 406.5   In light of this testimony, in addition

9    to the well-accepted principle of New York penal law that

10   voluntary intoxication can negate the mens rea of intent but not

11   recklessness, see N.Y. Penal Law § 15.25 ("[E]vidence of

12   intoxication of the defendant may be offered by the defendant

13   whenever it is relevant to negative an element of the crime


          5
             Curiously, the respondent never called this testimony to
     our attention, or, for that matter, to that of the district court
     or the New York Court of Appeals. To our dismay, we did not
     discover it except upon further review of the trial transcript
     after Policano III was decided. It is for that reason that it is
     not reflected in our opinion in Policano II, or, we suppose, in
     the opinion of the district court in Policano I, our colleagues'
     dissent from denial of en banc review, or the Court of Appeals's
     decision in Policano III. We solicited and received supplemental
     briefing on the implications, if any, of this evidence on our
     deliberations.
               We are permitted to consider the other evidence at
     trial as to Policano's drug use as part of our de novo review of
     "the record evidence adduced at the trial." Jackson, 443 U.S. at
     324; see also United States v. Espaillet, 380 F.3d 713, 718 (2d
     Cir. 2004) (reversing the district court's judgment of acquittal
     notwithstanding the verdict "[a]fter searching the record");
     United States v. Walker, 191 F.3d 326, 333 (2d Cir. 1999) ("In
     considering [a sufficiency of the evidence] challenge, we review
     all of the evidence presented at trial. . . ."), cert. denied,
     529 U.S. 1080 (2000).
                                     12
1    charged."); see also Register, 60 N.Y.2d at 275 (affirming trial

2    court's decision to instruct the jury as to effect of voluntary

3    intoxication on an intentional murder count but not depraved

4    indifference murder); N.Y. Penal Law 15.05(3) ("A person who

5    creates [a substantial and unjustifiable] risk but is unaware

6    thereof solely by reason of voluntary intoxication also acts

7    recklessly with respect thereto."), we cannot say that no

8    rational juror could have found beyond a reasonable doubt that

9    Policano acted unintentionally. See Jackson, 443 U.S. at 324.     A

10   reviewing court "faced with a record of historical facts that

11   supports conflicting inferences must presume -- even if it does

12   not affirmatively appear in the record -- that the trier of fact

13   resolved any such conflicts in favor of the prosecution, and must

14   defer to that resolution."   Id., at 326.   We therefore vacate our

15   opinion in Policano II and reverse the judgment of the district

16   court.

17                                CONCLUSION

18             For the foregoing reasons, the order of the district

19   court granting petitioner's 28 U.S.C. § 2254 habeas corpus

20   application and ordering him released from custody is reversed,

21   and the case is remanded to the district court with instructions

22   that it enter an order denying the petitioner's application for

23   habeas corpus.   The order of this court denying a stay with

24   respect to that portion of the district court's order releasing


                                      13
1   the petitioner from custody shall be vacated forthwith, and the

2   stay as to that portion of the order shall be granted forthwith

3   pending the issuance of the mandate in this appeal.




                                   14
