     13-3519-pr
     Smith v. Artus

                                  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 for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 4th day of May, two thousand fifteen.
 4
 5   PRESENT:
 6                      GUIDO CALABRESI,
 7                      PETER W. HALL,
 8                      SUSAN L. CARNEY,
 9                               Circuit Judges.
10   __________________________________________
11
12   AUREL SMITH,
13
14                              Petitioner-Appellant,
15
16                              v.                                                          13-3519-pr
17
18   DALE ARTUS, Superintendent, Clinton
19   Correctional Facility
20
21                              Respondent-Appellee.*
22
23   __________________________________________
24
25   FOR PETITIONER-APPELLANT:                                    JANE S. MEYERS, Brooklyn, NY.
26
27   FOR RESPONDENT-APPELLEE:                                     JOHN J. CARMODY, Assistant District
28                                                                Attorney (Steven A. Bender, Assistant
29                                                                District Attorney, on the brief), for Janet
     *   The Clerk of Court is respectfully directed to amend the official caption to conform with the above.
 1                                                         DiFiore, District Attorney of Westchester
 2                                                         County, White Plains, NY.
 3
 4          Appeal from a judgment of the United States District Court for the Southern District
 5   of New York (Owen, J.).

 6          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
 7   ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

 8          Petitioner-Appellant Aurel Smith appeals from a judgment of the District Court
 9   entered August 1, 2013, denying his petition for a writ of habeas corpus under 28 U.S.C.
10   § 2254. Smith contends that the New York Supreme Court, Appellate Division, Second
11   Department (“Appellate Division”), unreasonably applied clearly established United States
12   Supreme Court law when it concluded that the New York trial court’s failure to instruct his
13   jury on the defense of justification did not violate his due process rights. We assume the
14   parties’ familiarity with the underlying facts and the procedural history of the case, to which
15   we refer only as necessary to explain our decision.

16          In 2002, Smith was convicted following a jury trial on two counts of first-degree
17   assault (depraved indifference), see N.Y. Penal Law § 120.10(3), and one count of third-
18   degree criminal possession of a weapon, see N.Y. Penal Law § 265.02(1). The convictions
19   were based on Smith’s shooting of Denise Yancey and Yancey’s boyfriend, Kevin Jackson,
20   in Jackson’s apartment on November 3, 2001. At the time of the shooting, Smith rented a
21   room in Yancey’s apartment, and suspected Yancey’s friend, Letizia Murray, of stealing his
22   computer and certain other belongings from his room. The prosecution’s theory was that
23   Smith—incensed about the theft—forced his way into Jackson’s apartment with a gun and
24   proceeded to shoot Jackson, and then Yancey, in the head. The prosecution relied
25   principally on the testimony of Yancey and Jackson to that effect, as well as certain forensic
26   evidence. The defense’s theory was that Smith came to Jackson’s apartment unarmed
27   seeking Murray’s contact information, and that it was Jackson who threatened Smith with a
28   gun. The defense relied principally on testimony by Smith, who stated that Jackson forced


                                                      
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 1   Smith into the apartment at gunpoint, and that the two shots fired as Smith attempted to
 2   wrest the gun from Jackson’s right hand.

 3          Smith did not initially request a justification instruction. But after the preliminary
 4   charge to the jury, upon the court’s solicitation of “requests and exceptions,” Smith’s trial
 5   counsel informed the court: “Mr. Smith has advised me that he wishes that a justification
 6   charge be given to the jury, your Honor.” Trial Tr. (“Tr.”) 918-19. Even then, though,
 7   Smith offered no argument in support of the charge. In response to the prosecution’s
 8   objection, and after the court solicited further comment, Smith’s counsel stated only, “I rely
 9   on the sole discretion of the Court, your Honor.” Tr. 919. The court denied Smith’s request
10   for the instruction. After the jury informed the court that it had reached its verdict, Smith
11   renewed his request, this time offering a case citation. The court again denied Smith’s
12   request.

13          Smith appealed his conviction to the Appellate Division, arguing, inter alia, that the
14   trial court’s failure to instruct the jury on the defense of justification violated New York law
15   and the Due Process Clause of the United States Constitution. The Appellate Division
16   affirmed the judgment of conviction, but did not discuss the jury instruction challenges in
17   any depth: It stated only that “[t]he defendant’s remaining contentions, including those
18   raised in his supplemental pro se brief, are without merit.” People v. Smith, 782 N.Y.S.2d 366,
19   366 (App. Div. 2d Dep’t 2004). Smith sought, but was denied, leave to appeal to the New
20   York Court of Appeals on the question, inter alia, whether the failure to instruct the jury on
21   justification violated his due process rights.

22          New York law permits a person to “use physical force upon another person when
23   and to the extent he or she reasonably believes such to be necessary to defend himself . . .
24   from what he . . . reasonably believes to be the use or imminent use of unlawful physical
25   force by such other person,” N.Y. Penal Law § 35.15(1), though “[a] person may not use
26   deadly physical force upon another person . . . unless . . . [t]he actor reasonably believes that
27   such other person is using or about to use deadly physical force” or certain other conditions


                                                       
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 1   are met, id. § 35.15(2). “Justification is a defense, not an affirmative defense, and therefore
 2   the People bear the burden of disproving it beyond a reasonable doubt.” Matter of Y.K., 87
 3   N.Y.2d 430, 433 (1996) (citations omitted); see N.Y. Penal Law § 35.00. Further, “the
 4   defense [may] be raised against diverse charges involving the use of force, regardless of the
 5   relevant mens rea.” People v. McManus, 67 N.Y.2d 541, 547-48 (1986) (explaining that a
 6   justification defense may be asserted against a charge of depraved indifference murder). “[A]
 7   charge on justification is warranted whenever there is evidence to support it. The court
 8   must view the record in a light most favorable to the accused and, if any reasonable view of
 9   the evidence would permit the fact finder to decide that the conduct of the accused was
10   justified, an instruction on the defense should be given.” Id. at 549 (citations omitted).
11   Where only an “artificial or irrational” view of the evidence would permit a jury to conclude
12   that the defendant was justified, however, the justification instruction is not appropriate.
13   People v. Butts, 72 N.Y.2d 746, 750 (1988).

14           Of course, “it is not the province of a federal habeas court to reexamine state-court
15   determinations of state-law questions. In conducting habeas review, a federal court is
16   limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
17   United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Thus where, as here, “an error
18   in a jury instruction is alleged, ‘it must be established not merely that the instruction is
19   undesirable, erroneous, or even “universally condemned,” but that it violated some right
20   which was guaranteed to the defendant by the Fourteenth Amendment.’” Davis v. Strack,
21   270 F.3d 111, 123 (2d Cir. 2001) (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)). The
22   relevant question is “whether the ailing instruction by itself so infected the entire trial that
23   the resulting conviction violates due process.” Cupp, 414 U.S. at 147.

24             When a state court has addressed the merits of the federal claim, the federal court’s
25   review is further constrained by the standard set out in 28 U.S.C. § 2254(d).1 Here, we


     1“When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court
     must presume that the federal claim was adjudicated on the merits . . . .” Johnson v. Williams, 133 S. Ct. 1088,
     1096 (2013). Smith has not rebutted the presumption here.

                                                               
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 1   cannot grant Smith relief “unless the adjudication of the claim . . . resulted in a decision that
 2   . . . involved an unreasonable application of . . . clearly established Federal law, as determined
 3   by the Supreme Court of the United States.” Id. § 2254(d)(1). “[A]n unreasonable application
 4   of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529
 5   U.S. 362, 410 (2000). To prevail, Smith “must show that the state court’s ruling on the claim
 6   being presented in federal court was so lacking in justification that there was an error well
 7   understood and comprehended in existing law beyond any possibility for fairminded
 8   disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

 9          In adjudicating a habeas petition based on a New York court’s failure to provide a
10   justification instruction, we thus typically ask three questions: “First, was the justification
11   charge required as a matter of New York state law? Second, if so, did the failure to give the
12   requested charge violate the standard set out in Cupp[?] Third, if so, was the state court’s
13   failure of such a nature that it is remediable by habeas corpus, given the limitations
14   prescribed by 28 U.S.C. § 2254?” Davis, 270 F.3d at 124.

15          The District Court held that habeas relief was not warranted because, under New
16   York law, no justification charge was required. In the District Court’s view, to credit Smith’s
17   testimony that the shots were fired in a struggle for the gun would have been to take an
18   irrational view of the evidence, see Butts, 72 N.Y.2d at 750. The court focused principally on
19   what it considered “objective and unassailable” forensic evidence, Special App. 14,
20   contradicting testimony by Smith that the gun fired while Smith was grasping for the gun
21   with his left hand, and that the gun fired at Jackson from “[l]ess than arm’s length” away, Tr.
22   715. The court also reasoned that it would be irrational to believe that the only two bullets
23   fired hit Jackson and Yancey in the head by chance.

24          We disagree with the District Court that, under New York law, the justification
25   instruction was not warranted. Smith’s testimony, if believed, would have permitted a
26   reasonable jury to conclude that Smith was justified in attacking Jackson, see McManus, 67
27   N.Y.2d at 547-48, and we cannot say that no reasonable jury could have credited that


                                                       
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 1   testimony. The forensic evidence—construed in the light most favorable to Smith—did not
 2   in fact “objective[ly] and unassailabl[y]” undermine Smith’s testimony. While the forensic
 3   expert testified that the pattern of gunshot residue on Smith’s hands suggested that Smith
 4   had fired the gun from his right—and not left—hand, the expert also testified that gunshot
 5   residue “particles do not stick well, particularly to skin, and actions such as rubbing the hand
 6   can remove the particles or transfer them from one hand to the other,” Tr. 562-63.
 7   Similarly, Smith’s testimony that the gun fired at Jackson from “[l]ess than arm’s length”
 8   away was not necessarily inconsistent with forensic evidence that the gun fired from a
 9   distance of 24 inches or more. As for Smith’s testimony that the gun discharged
10   accidentally, we disagree that the possibility of the bullets striking Jackson and Yancey in the
11   head by chance was so remote that Smith’s testimony was incredible as a matter of law.
12   Therefore, even assuming arguendo that New York law permits the prosecution’s evidence to
13   render the defense argument of justification so implausible as to negate the need for the
14   instruction, that would not be so in this case.

15          But we cannot say that the Appellate Division unreasonably applied Cupp when it
16   concluded, ultimately, that the failure to provide the instruction did not “by itself so infect[]
17   the entire trial that the resulting conviction violates due process.” Because the Cupp standard
18   is a general one, “a state court has even more latitude to reasonably determine that a
19   defendant has not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
20   Given the nature of Smith’s testimony and the existence of potentially contradictory forensic
21   evidence, the Appellate Division reasonably could have concluded that Smith’s account—
22   even if potentially credible—was sufficiently implausible that Smith’s due process rights were
23   not violated as a result of the failure to provide the justification charge. See Henderson v.
24   Kibbe, 431 U.S. 145, 157 (1977) (denying habeas relief when the possibility “that the jury
25   might have reached a different verdict pursuant to an additional instruction” was “too
26   speculative to justify the conclusion that constitutional error was committed”); cf. Davis, 270
27   F.3d at 131, 133 (granting habeas relief when “there [wa]s a substantial likelihood that a
28   properly instructed jury would have found in [petitioner’s] favor”); Jackson v. Edwards, 404

                                                        
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 1   F.3d 612, 627-28 (2d Cir. 2005) (granting habeas relief when a properly instructed jury
 2   “might well have” found in petitioner’s favor).

 3          Further, Smith requested a justification instruction only after the initial jury charge,
 4   and did not offer any argument in support of his request until after the jury had reached its
 5   verdict. A party may request an instruction “after the court’s charge” as a matter of New
 6   York law. N.Y. Crim. Proc. Law § 300.10(5). But the Appellate Division reasonably could
 7   have concluded, in light of Smith’s delay and the nature of the requests, that as a matter of
 8   federal law the resulting conviction did not violate due process. See Kibbe, 431 U.S. at 154
 9   (“Orderly procedure requires that the respective adversaries’ views as to how the jury should
10   be instructed be presented to the trial judge in time to enable him to deliver an accurate
11   charge and to minimize the risk of committing reversible error.”). Because the Appellate
12   Division did not unreasonably apply any clearly established Supreme Court law, the District
13   Court did not err in denying Smith’s habeas petition.

14                                                * * *

15          We have considered Smith’s remaining arguments, including those in Smith’s
16   supplemental pro se reply brief, and find them to be without merit. We AFFIRM the
17   judgment of the District Court.

18                                                         FOR THE COURT:
19                                                         Catherine O’Hagan Wolfe, Clerk of Court




                                                        
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