329 F.3d 290
Brian JONES, Petitioner-Appellee,v.John KEANE, Superintendent, Woodbourne Correctional Facility, Respondent-Appellant.
No. 02-2382.
United States Court of Appeals, Second Circuit.
Argued: February 19, 2003.
Decided: May 13, 2003.
Amended: May 14, 2003.

COPYRIGHT MATERIAL OMITTED Andrew R. Kass, Assistant District Attorney (Richard A. Brown, District Attorney of Queens County, John M. Castellano, Assistant District Attorney, of counsel and on the brief), for Francis D. Phillips, II, District Attorney of Orange County, Goshen, NY, for Respondent-Appellant.
Robert N. Isseks (Alex Smith, on the brief), Middletown, NY, for Petitioner-Appellee.
Before: OAKES, KEARSE, and B.D. PARKER, Circuit Judges.
B.D. PARKER, Jr., Circuit Judge.


1
Respondent-appellant John P. Keane, superintendent of the Woodbourne Correctional Facility, appeals the grant of Brian Jones's petition for a writ of habeas corpus by the United States District Court for the Southern District of New York (Brieant, J.). Jones claimed, and the court agreed, that the New York second-degree murder statute, under which he was convicted, was unconstitutionally vague. See N.Y. Penal Law § 125.25(2). Although he had not raised this argument in state-court proceedings, Jones argued that the claim was nonetheless exhausted because of its close relationship with an insufficiency-of-the-evidence claim he had raised on direct appeal. Since we conclude the claim was unexhausted, we reverse.

I. BACKGROUND

2
Jones was convicted by a jury in County Court, Orange County, New York, of Murder in the Second Degree1 and Criminal Possession of a Weapon in the Second2 and Third Degrees3 and sentenced in December 1996, as a juvenile, to concurrent sentences of nine years to life on the murder charge, two to six years on the second-degree weapons-possession charge, and one to three years on the third-degree weapons-possession charge. The conviction stemmed from a June 1996 altercation in the City of Newburgh, involving Jones, LaToya Williams (Jones's girlfriend), and Germaine Fields. While attempting to separate the two young men, Williams fell to the ground with Fields. Jones then fired two shots, killing Fields. At trial, Jones testified that he did not intend to kill Fields but, fearing that he was armed, was animated at least in part by concerns of self defense.


3
Jones was charged with one count of intentional murder under N.Y. Penal Law § 125.25(1), one count of depraved indifference murder under N.Y. Penal Law § 125.25(2), and criminal possession of a weapon in the second and third degrees. The jury acquitted Jones of intentional murder, but, as noted, convicted him of second-degree ("depraved indifference") murder and on the two weapons-possession counts.


4
On direct appeal, Jones argued that the evidence at trial was insufficient to establish his guilt on the second-degree murder charge and that, instead, the evidence showed that his actions were justified "due to a reasonable fear for his safety." This argument was rejected by the Appellate Division, which affirmed Jones's conviction. People v. Jones, 266 A.D.2d 236, 696 N.Y.S.2d 902 (2d Dep't 1999). Leave to appeal was denied by the New York Court of Appeals. People v. Jones, 95 N.Y.2d 798, 711 N.Y.S.2d 166, 733 N.E.2d 238 (2000). Jones then applied for writ of error coram nobis, asserting that he was denied effective assistance of appellate counsel. This application was denied. People v. Jones, 288 A.D.2d 237, 732 N.Y.S.2d 361 (2d Dep't 2001). Jones also moved in the County Court under N.Y.Crim. Proc. Law § 440.10 to vacate his conviction because of ineffective assistance of trial counsel. But this motion was also denied, as was leave to appeal it.


5
Jones then turned to federal court, filing a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. In this petition, Jones asserted, as in state court, that the evidence was insufficient to support his murder conviction and that his trial and appellate counsel had provided ineffective representation. Jones also argued, however, that the crime of depraved indifference murder is unconstitutionally vague, owing to "confused and contradictory" efforts to interpret "depraved indifference" by the New York Court of Appeals. Hab. Pet. at 18. These efforts, Jones contended, have made depraved indifference murder indistinguishable from the crime of reckless manslaughter. This elision, according to Jones, creates the potential for unconstitutional variances in the charges prosecutors can lodge and sentences that may be imposed for essentially the same conduct.4


6
More specifically, Jones argues that the New York Court of Appeals erred in concluding, beginning with People v. Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704 (1983), that depraved indifference murder does not require "an `uncommonly evil and morally perverse frame of mind,'" People v. Sanchez, 98 N.Y.2d 373, 383, 748 N.Y.S.2d 312, 777 N.E.2d 204 (2002) (quoting id. at 396, 748 N.Y.S.2d 312, 777 N.E.2d 204 (Rosenblatt, J., dissenting)), and instead that "the crux" of this crime "is recklessness exaggerated by indifference to the circumstances objectively demonstrating the enormity of risk of death from the defendant's conduct." Id. at 380, 748 N.Y.S.2d 312, 777 N.E.2d 204. Jones contends that the depraved indifference murder statute is unconstitutional, as so interpreted, because it cannot be distinguished from reckless manslaughter, which occurs when a person "recklessly causes the death of another person." N.Y. Penal Law § 125.15(1).


7
The "failure of the [depraved indifference] statute to adequately define the more serious mens rea" creates the risk, according to Jones, "that prosecutors and juries [will] arbitrarily and erratically determine which crime to prosecute or to apply." Appellee Br. at 25 (citing, among other authorities, Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ("Where the legislature fails to provide such minimal guidelines, a criminal statute may permit `a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'" (quoting Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974)))).5 While conceding that this claim had not been specifically raised in state court, Jones asserted that his vagueness claim was nonetheless exhausted because it was "interrelated" with an insufficiency-of-the-evidence claim raised on direct appeal.


8
The District Court granted the petition. It first concluded that the depraved indifference murder and reckless manslaughter statutes were, on their face, neither vague nor indistinguishable. But it accepted Jones's argument that attempts by the New York Court of Appeals to interpret "depraved indifference" had resulted in "a largely circular definition worthy of the committee that wrote the Internal Revenue Code" and had effectively eviscerated any meaningful distinction between depraved indifference murder and reckless manslaughter. Mem. and Order, May 22, 2002, at 8. The District Court found that the conflation of conduct covered by the two closely related crimes violated equal protection and substantive due process. It further agreed with Jones that presenting his insufficiency-of-the-evidence claim in state court sufficed to exhaust his vagueness claim, finding the two "substantially the same." Id. at 11.

II. DISCUSSION

9
We review de novo the District Court's grant of habeas corpus and we review its factual findings for clear error. Jenkins v. Artuz, 294 F.3d 284, 290 (2d Cir.2002). Although the parties raise a number of issues, we address principally the exhaustion issue since we conclude it is dispositive.

A. Vagueness and Exhaustion

10
With exceptions not relevant here, federal habeas relief is not available unless "the applicant has exhausted the remedies available in the courts of the State."6 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement "springs primarily from considerations of comity" between the federal and state judicial systems. Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 191 (2d Cir.1982) (en banc). By requiring exhaustion, federal courts recognize that state courts, "no less than federal courts, are bound to safeguard the federal rights of state criminal defendants." Id. Besides serving "to minimize friction between our federal and state systems of justice," Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam), the exhaustion requirement has the salutary practical effect of enhancing the familiarity of state courts with federal constitutional issues. See Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).


11
Exhaustion requires a petitioner fairly to present the federal claim in state court. See Strogov v. Att'y Gen. of N.Y., 191 F.3d 188, 191 (2d Cir.1999). "A petitioner has `fairly presented' his claim only if he has `informed the state court of both the factual and the legal premises of the claim he asserts in federal court.'" Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir.1997) (quoting Daye, 696 F.2d at 191). The claim presented to the state court, in other words, must be the "substantial equivalent" of the claim raised in the federal habeas petition. Strogov, 191 F.3d at 191 (quoting Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)).


12
As noted, the District Court found that the insufficiency of the evidence claim that Jones presented in state court was the substantial equivalent of the claim of unconstitutional vagueness raised in his federal habeas petition. The court also expressed concern that presentation of the vagueness claim in state court may well have been futile. As explained by the District Court:


13
Petitioner argues, and this Court agrees, that in the context of this case, raising in the state court the issue of insufficiency of the evidence was sufficient to raise ("inextricably intertwined with") a challenge to the statutory criteria for distinguishing reckless manslaughter from depraved indifference murder.


14
The requirement for exhaustion is not intended to exhaust the petitioner or his or her lawyers, but is designed to give the state courts the opportunity to address and correct violations of Constitutional rights. That purpose is fulfilled when the state court has a fair and meaningful chance to grant relief on what is substantially the same claim raised in federal court. O'Sullivan v. Boerckel[,] 526 U.S. 838[, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1] (1999)[;] Vasquez v. Hillery[,] 474 U.S. 254, 257[, 106 S.Ct. 617, 88 L.Ed.2d 598] (1986). In the context of this case, if they won't listen to Judge Bellacosa and they won't listen to Judge Jasen, they won't listen to Brian Jones, and no purpose will be served in staying this case for further exhaustion of state remedies.7


15
Mem. and Order, May 22, 2002, at 11-12.


16
But the fact that the New York Court of Appeals may have been unlikely to grant Jones relief on his vagueness claim does not cure his failure to have raised it in state courts. It is well established that a petitioner may not bypass state courts merely because they may be unreceptive to the claim. See Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ("`[F]utility cannot constitute cause,'" for procedural default because of failure to raise claim on direct review, "`if it means simply that a claim was unacceptable to that particular court at that particular time.'") (quoting Engle v. Isaac, 456 U.S. 107, 130 n. 35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (internal quotation marks in Engle omitted)); Rosario v. United States, 164 F.3d 729, 733 (2d Cir.1998).


17
We also conclude that the insufficiency-of-the-evidence claim Jones asserted on direct appeal was not substantially the same as his vagueness claim since the insufficiency claim did not alert the state court to a claim of statutory vagueness. In his insufficiency claim, Jones did not challenge the type of conduct that would constitute depraved indifference murder but argued that sufficient evidence had not been presented at trial. Indeed, Jones recited the elements of second-degree murder in his appeal, without indicating any concern that these elements were unconstitutionally vague: In order to be found guilty of second degree murder [citation omitted] the People were required to prove that "under circumstances evincing a depraved indifference to human life" Appellant engaged in conduct which creates a grave risk of death and causes the death of another person. This simply was not proven.


18
Appellee Br. before N.Y.App. Div. at 9.


19
Sometimes, of course, issues of vagueness and of the sufficiency of the evidence may overlap. In Strogov, for example, a habeas petitioner, who had been convicted in state court of grand larceny for submitting fraudulent Medicaid billing claims, argued on appeal that the evidence presented at trial did not establish her criminal intent to violate the statute, because the Medicaid billing code was ambiguous. But even there, where claims of vagueness and insufficiency were explicitly linked, we held that reliance on a statute's ambiguity in support of an insufficiency of the evidence claim on appeal did not suffice to exhaust a constitutional vagueness claim raised in the habeas petition, because the petitioner had failed to present the state courts with "`essentially the same legal doctrine'" asserted in the habeas petition. 191 F.3d at 192 (quoting Daye, 696 F.2d at 191-92).


20
In advancing his insufficiency claim in state court, Jones did not argue that New York's depraved indifference murder statute was unconstitutionally vague. Instead, he argued that the evidence demonstrated that he reasonably believed that Fields possessed a weapon and that he, fearing for his life, reacted in self defense. In other words, in the state courts, Jones pressed his claim of self defense; he presented neither the factual nor legal premises underpinning his subsequent claim that the statute itself was unconstitutionally vague. Accordingly, Jones failed to exhaust this claim. See Strogov, 191 F.3d at 193.


21
We also agree with respondent that Jones has procedurally defaulted his vagueness claim since New York's procedural rules now bar Jones from raising it in New York courts. Further direct review by the Court of Appeals is no longer available, see N.Y. Rules of Court, Court of Appeals, § 500.10(a) (authorizing only one request for review of conviction), and the failure to have raised the claim on direct review now forecloses further collateral review in state court. See N.Y.Crim. Proc. Law § 440.10(2)(c) (barring review if claim could have been raised on direct review). In the case of procedural default, we may reach the merits of the claim "only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley, 523 U.S. at 622, 118 S.Ct. 1604 (internal quotations and citations omitted). Since Jones has not attempted to meet this standard, we do not reach the merits of his claim.

B. Other Claims

22
Jones also urges us to affirm the District Court's grant of habeas relief on alternative grounds: that the evidence was insufficient to establish his guilt, that his trial counsel was ineffective for failing to exhaust his peremptory challenges-so as to preserve his ability to appeal the trial court's denial of certain challenges for cause-and that his appellate counsel was ineffective for failing to raise this claim on appeal. We cannot consider these alternative grounds, however, because "a habeas petitioner to whom the writ has been granted on one or more grounds may not assert, in opposition to an appeal by the state, any ground that the district court has not adopted unless the petitioner obtains a certificate of appealability permitting him to argue that ground." Grotto v. Herbert, 316 F.3d 198, 209 (2d Cir.2003). Jones has not received a certificate of appealability on any grounds not adopted by the District Court. Moreover, were we to treat his appellate brief as a request for such a certificate, we would deny the request because he has failed to make a substantial showing of the denial of a constitutional right. See id. at 209-10; 28 U.S.C. § 2253(c)(2).

CONCLUSION

23
For the foregoing reasons, the judgment of the District Court is reversed and Jones's petition is dismissed.



Notes:


1
 N.Y. Penal Law § 125.25(2), provides that a person is guilty of murder in the second degree 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."


2
 To the extent pertinent here, under N.Y. Penal Law § 265.03, a person is guilty of criminal possession of a weapon in the second degree when he possesses a loaded firearm "with intent to use the same unlawfully against another."


3
 To the extent pertinent here, under N.Y. Penal Law § 265.02, a person is guilty of criminal possession of a weapon in the third degree when he possesses a loaded firearm unless "such possession takes place in such person's home or place of business."


4
 Although reckless manslaughter carries a minimum punishment of only a year in prison, depraved indifference murder carries a minimum punishment of 15 years in prisonSee N.Y. Penal Law § 70.00(3)(a) and (b); People v. Sanchez, 98 N.Y.2d 373, 407, 748 N.Y.S.2d 312, 777 N.E.2d 204 (Rosenblatt, J., dissenting).


5
 Jones's position is shared by some members of the New York Court of Appeals, who have dissented when that court has rejected similar vagueness challengesSee, e.g., Register, 60 N.Y.2d at 281-88, 469 N.Y.S.2d 599, 457 N.E.2d 704 (Jasen, J., dissenting); People v. Roe, 74 N.Y.2d 20, 29-38, 544 N.Y.S.2d 297, 542 N.E.2d 610 (1989) (Bellacosa, J., dissenting), Sanchez, 98 N.Y.2d at 407, 748 N.Y.S.2d 312, 777 N.E.2d 204 (Rosenblatt, J., dissenting) ("[T]he Register Court's formulation has the effect of treating defendants with the exact same mental culpability unequally by giving them vastly different sentences even though their moral culpability is identical.").


6
 As modified by AEDPA, the federal habeas statute permits federal courts todeny unexhausted claims on the merits. See 28 U.S.C. § 2254(b)(2).


7
 The District Court's reference to New York Court of Appeals Judges Bellacosa and Jasen is to dissenting opinions authored by these JudgesSee supra note 5.


