        10-0060-pr
        Gibbs v. Donnelly


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
     ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER
     IN A DOCUM ENT FILED WITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR
     AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
     ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1              At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2      Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3      on the 22nd day of November, two thousand and ten.
 4
 5      PRESENT:
 6
 7              AMALYA L. KEARSE,
 8              JOSEPH M. MCLAUGHLIN,
 9              DEBRA ANN LIVINGSTON,
10
11                                    Circuit Judges.
12
13      _______________________________________________
14
15      DOMINIC GIBBS,
16
17                                    Petitioner-Appellant,
18
19                      v.                                                  No. 10-0060-pr
20
21      EDWARD DONNELLY, Superintendent,
22
23                              Respondent-Appellee.
24      ______________________________________________
25
26
27                                            HILLARY K. GREEN , Federal Public Defender, Buffalo, New
28                                            York, for Petitioner-Appellant.
29
30

                                                         1
 1                                          GEOFFREY KAEUPER, Assistant District Attorney for
 2                                          Monroe County, Michael C. Green, District Attorney for
 3                                          Monroe County, Rochester, New York, for Respondent-
 4                                          Appellee.
 5

 6          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

 7   that the judgment of the district court be AFFIRMED.

 8          Petitioner-Appellant Dominic Gibbs (“Gibbs”) appeals from a December 8, 2009 judgment

 9   of the United States District Court for the Western District of New York (Arcara, J.), denying his

10   petition for a writ of habeas corpus, see 28 U.S.C. § 2254. Gibbs challenges his conviction on one

11   count of second degree (intentional) murder, N.Y. Penal Law §§ 20.00, 125.25(1), in New York

12   Supreme Court, Monroe County. Gibbs was convicted as an accomplice and sentenced to the

13   statutory maximum term of 25 years to life in prison. On direct appeal, the Appellate Division

14   affirmed Gibbs’s conviction on September 28, 2001, and the New York Court of Appeals denied

15   leave to appeal on January 15, 2002. People v. Gibbs, 286 A.D.2d 865 (N.Y. App. Div. 4th Dep’t

16   2001), lv. denied, 97 N.Y.2d 704 (N.Y. 2002). The district court granted a Certificate of

17   Appealability on the issue of “whether the trial court’s denial of a jury instruction on self-defense

18   or justification amounted to a violation of petitioner’s federal constitutional rights.” We assume the

19   parties’ familiarity with the underlying facts and procedural history.

20          We review a district court’s denial of a petition for habeas corpus de novo, and its factual

21   findings for clear error. Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir. 2007); Anderson v. Miller,

22   346 F.3d 315, 324 (2d Cir. 2003). Because Gibbs challenges a claim adjudicated on the merits in

23   state court, we apply the deferential standard of review codified in the Antiterrorism and Effective

24   Death Penalty Act of 1996, 28 U.S.C. § 2254(d) (“AEDPA”). See Dolphy v. Mantello, 552 F.3d 236,


                                                       2
 1   238 (2d Cir. 2009). Under AEDPA, a federal court may grant a writ of habeas corpus to a state

 2   prisoner on a claim that was adjudicated on the merits in state court only if the state court’s decision

 3   was “contrary to, or involved an unreasonable application of, clearly established Federal law, as

 4   determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Dolphy, 552 F.3d

 5   at 238. The state court’s application of clearly established law “must be objectively unreasonable,”

 6   not merely incorrect or erroneous. Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The Supreme Court

 7   has instructed that this is “a substantially higher threshold” than mere error. Schriro v. Landrigan,

 8   550 U.S. 465, 473 (2007).

 9           Gibbs argues that the state trial court violated his due process rights by denying him a jury

10   instruction on “vicarious” justification. In Cupp v. Naughten, 414 U.S. 141 (1973), the Supreme

11   Court held that a federal court may overturn a state court conviction on the ground of an erroneous

12   instruction only where the instruction complained of “so infected the entire trial that the resulting

13   conviction violates due process.” Id. at 147. Consistent with Cupp, we have held that “[i]n order

14   to obtain a writ of habeas corpus in federal court on the ground of error in a state court’s instructions

15   to the jury on matters of state law, the petitioner must show not only that the instruction misstated

16   state law but also that the error violated a right guaranteed to him by federal law.” Davis v. Strack,

17   270 F.3d 111, 123 (2d Cir. 2001) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)); see

18   also Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990) (“A mere error of state law does not deny

19   a defendant his right to due process.”).

20           We note at the outset that both parties, as well as the state and district courts, concur that

21   there are no published cases suggesting that a defendant charged as an accomplice under New York

22   law may claim self-defense where the alleged principal applied deadly physical force. Even


                                                        3
 1   assuming that state law entitled Gibbs to a “vicarious” justification instruction of the sort he urges,

 2   however, we nevertheless agree with the district court that the failure to give such instruction did not

 3   result in a denial of due process.

 4           We have declined to find a violation of due process where a justification charge would not

 5   have affected the jury’s verdict. Blazic, 900 F.2d at 542-43. In Blazic, we acknowledged that New

 6   York law requires a jury to “determine[ whether] the People have established all of the elements of

 7   the crime [charged],” and upon such determination, to “then turn to consider his defense known in

 8   law as ‘justification.’” Id. at 542 n.4 (quoting 1 Criminal Jury Instructions, New York 867 (1983))

 9   (emphasis in Blazic) (internal quotation marks omitted). We then noted that a jury “would have had

10   to reject significant aspects of” the defendant’s testimony “to find that the prosecution met its

11   burden” of establishing all the elements of the crime. Id. at 543. From these observations, we

12   concluded that “if a jury rejected the majority of [the defendant’s] testimony, a justification charge

13   would not have affected the jury’s verdict since his testimony was the only evidence supporting a

14   justification claim.” Id.

15           Gibbs’s testimony was the only evidence that even arguably supported a justification defense

16   as to the alleged principal here. The jury, however, necessarily rejected Gibbs’s version of the events

17   in determining he was guilty as an accomplice to the crime of second degree murder. A “vicarious”

18   justification charge would thus not have changed the jury’s verdict. Moreover, even if the jury were

19   to have assumed the truth of Gibbs’s testimony, Gibbs’s account of the moments just before the

20   shooting was merely that he heard some arguing and then a “pop.” Under these circumstances, we

21   find that the state trial court’s refusal to grant a “vicarious” jury instruction did not deprive Gibbs

22   of a “highly credible defense” on which he had a “significant possibility of prevailing.” Davis, 270


                                                        4
 1   F.3d at 131-32.

 2          Alternatively, Gibbs argues that he was entitled to an ordinary justification instruction, on

 3   the theory that he himself committed a deadly act in self-defense. Gibbs, however, never requested

 4   such an instruction at trial and raises this argument for the first time on appeal from the denial of

 5   habeas relief. It is therefore not properly before this Court. See Teague v. Lane, 489 U.S. 288, 308

 6   (1989); see also N.Y. Crim. Proc. Law §§ 440.10(2)(c), 470.05(2); People v. Cuadrado, 9 N.Y.3d

 7   362, 364-65 (N.Y. 2007); People v. Cona, 49 N.Y.2d 26, 33 (N.Y. 1979).

 8          We have considered all of Gibbs’s contentions on appeal and find them to be without merit.

 9   For the foregoing reasons, the judgment of the district court is AFFIRMED.

10

11                                                         FOR THE COURT:
12                                                         Catherine O’Hagan Wolfe, Clerk


13




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