     01-2204-pr
     Pennington v. Bennett

1                                        UNITED STATES COURT OF APPEALS
2                                            FOR THE SECOND CIRCUIT

3                                                    SUMMARY ORDER
4     R U L IN G S B Y SU M M A R Y O R D E R D O N O T H A V E P R E CE D E N T IA L E F FE C T . C ITATIO N TO A SU M M AR Y O R D ER FILE D O N O R
5     AFTE R J AN U ARY 1, 2007, IS PERM ITTED AN D IS GO VER N ED BY F ED ER AL R U LE O F A P PE LL AT E P R O C E D U R E 32.1 AN D TH IS
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7     C IT E E IT H E R T H E F E D E R A L A P P E N D IX O R A N E L E C TR O N IC D A T AB A SE ( W ITH TH E N O TATIO N “ SU M M A R Y O R D E R ”). A
8     P AR T Y C IT IN G A SU M M A R Y O R D E R M U ST SE R V E A C O P Y O F IT O N A N Y P AR T Y N O T R E P R E SE N T E D B Y CO U N SE L .


 9   At a stated term of the United States Court of Appeals for the
10   Second Circuit, held at the Daniel Patrick Moynihan United States
11   Courthouse, 500 Pearl Street, in the City of New York, on the
12   16th day of April, two thousand ten.

13   PRESENT:
14                       JOSEPH M. McLAUGHLIN,
15                       ROBERT D. SACK,
16                                 Circuit Judges,
17                       PAUL A. CROTTY,*
18                                 District Judge.

19   --------------------------------------
20    James E. Pennington,
21              Petitioner-Appellant,
22
23                        - v -
                                                                                                                 No. 01-2204-pr
24    Floyd Bennett,
25              Respondent-Appellee.

26   --------------------------------------

27   Appearing for Appellant:                                       James E. Pennington, pro se,
28                                                                  Sonyea, NY.

29                                                                  Michael Y. Scudder, Jr. (Su Ji Lee,
30                                                                  on the brief), Court Appointed
31                                                                  Amicus Curiae, Chicago, IL.




              *
             The Honorable Paul A. Crotty, of the United States
     District Court for the Southern District of New York, sitting by
     designation.
1    Appearing for Respondent:     J. Michael Marion (Michael J.
2                                  Hillery, of counsel), for Frank J.
3                                  Clark, District Attorney of Erie
4                                  County, Buffalo, NY.

5         Appeal from a judgment of the United States District Court
6    for the Western District of New York (Bauer, Magistrate Judge).

7         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
8    DECREED that the judgment of the district court be, and it hereby
9    is, AFFIRMED.

10        Petitioner-Appellant James E. Pennington appeals pro se from
11   a judgment of the United States District Court for the Western
12   District of New York denying his petition for a writ of habeas
13   corpus pursuant to 28 U.S.C. § 2254. We appointed pro bono
14   counsel as amicus curiae for Pennington to brief, inter alia,
15   whether Pennington's petition was not procedurally barred under
16   the fundamental miscarriage of justice exception. See Murray v.
17   Carrier, 477 U.S. 478 (1986).

18        Amicus counsel argues that Pennington's petition is not
19   procedurally barred under that exception because, in relation to
20   the shooting death of Octavio Duran, a jury impermissibly
21   convicted Pennington of mutually inconsistent offenses:
22   intentional murder, see N.Y. Penal Law § 125.25(1), and depraved
23   indifference murder, see id. § 125.25(2).* See People v.
24   Gallagher, 69 N.Y.2d 525, 529-30, 508 N.E.2d 909, 910 (1987)
25   ("[I]ntentional murder and depraved mind murder[] are
26   inconsistent counts as defined in CPL 300.30(5), because guilt of
27   one necessarily negates guilt of the other. A finding that
28   defendant committed intentional murder by killing his victim with
29   the conscious objective of causing his death precludes the
30   inconsistent finding that defendant at the same time committed
31   depraved mind murder by recklessly and thus unintentionally


          *
             In New York, a person is guilty of second-degree
     intentional murder when, "[w]ith intent to cause the death of
     another person, he causes the death of such person or of a third
     person." N.Y. Penal Law § 125.25(1).

          A person is guilty of second-degree depraved indifference
     murder when, "[u]nder circumstances evincing a depraved
     indifference to human life, he recklessly engages in conduct
     which creates a grave risk of death to another person, and
     thereby causes the death of another person." N.Y. Penal Law §
     125.25(2).

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1    killing that same victim under circumstances evincing a depraved
2    indifference to human life.").

 3        We review a district court's denial of a writ of habeas
 4   corpus de novo. See Cotto v. Herbert, 331 F.3d 217, 229 (2d Cir.
 5   2003). Where, as here, a habeas petitioner's claim is
 6   procedurally defaulted, a "habeas petitioner may avoid such a
 7   default . . . by showing cause for the default and prejudice, or
 8   that failure to consider the claim will result in miscarriage of
 9   justice, i.e., the petitioner is actually innocent." Sweet v.
10   Bennett, 353 F.3d 135, 141 (2d Cir. 2003); see also Murray v.
11   Carrier, 477 U.S. 478, 496 (1986). Only the latter exception --
12   fundamental miscarriage of justice -- is relevant here because
13   that is the question on which we granted Pennington's motion for
14   a certificate of appealability. The "fundamental miscarriage of
15   justice exception is 'extremely rare' and should be applied only
16   in 'the extraordinary cases.'" Sweet, 353 F.3d at 142.
17   "'[A]ctual innocence' means factual innocence rather than just
18   legal insufficiency," and so "the question depends on whether it
19   is more likely than not that no reasonable juror would have
20   concluded that [the petitioner] engaged in conduct that meets the
21   required elements of each of the [allegedly inconsistent]
22   charges." Id.

23        We conclude that Pennington's petition is not saved by the
24   fundamental miscarriage of justice exception. Pennington shot
25   Duran three times in succession. Pennington testified that he
26   pulled out his gun while standing on the side of a street, that
27   Duran lunged toward him, and that the gun "went off" without
28   Pennington intending to fire. See Trial Tr. 1088, 1091-92.
29   Duran's wife testified that after Pennington fired the first
30   shot, Duran turned towards her and Pennington shot him two more
31   times. See id. at 725-26.

32        Despite some reservations about treating these three shots
33   as separate acts, we conclude that our decision in Sweet mandates
34   our holding that the fundamental miscarriage of justice exception
35   does not apply here. In Sweet, we confronted a situation where a
36   defendant was found guilty of both first degree manslaughter, an
37   offense requiring intent, and second degree murder, an offense
38   requiring reckless but not intentional conduct, and found that
39   where there was evidence of multiple blows and injuries "the jury
40   could have concluded that this evidence demonstrated a series of
41   intentionally physical injuries, culminating in one final blow
42   that demonstrated the reckless creation of a grave risk of
43   serious physical injury or death," and that the charged offenses
44   were therefore not mutually inconsistent. Sweet, 353 F.3d at
45   142. Similarly a reasonable juror here could have concluded that

                                     3
 1   at least one of Pennington's three shots was fired recklessly
 2   under circumstances evincing a depraved indifference to human
 3   life and at least one was fired with intent to kill; for example,
 4   a reasonable juror might have concluded that the first shot was
 5   fired recklessly under circumstances evincing depraved
 6   indifference, based on Pennington's testimony that the gun just
 7   "went off," but that the second two shots were fired with intent
 8   to kill, based on the evidence that Duran had turned away from
 9   Pennington and was shot twice in the back, and that the gun did
10   not have a "hair trigger." See Trial Tr. at 608-11.
11   Accordingly, Pennington has failed to demonstrate the factual
12   innocence required for a claim of actual innocence, and his
13   habeas claims are procedurally barred.

14        For the foregoing reasons, the judgment of the district
15   court is hereby AFFIRMED.



16                       FOR THE COURT:
17                       Catherine O'Hagan Wolfe, Clerk of the Court



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