     13-2160
     Lyons v. LaClaire



                          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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 27th day of June, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                CHESTER J. STRAUB,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       Andrew Lyons,
13                Petitioner-Appellant,
14
15                    -v.-                                               13-2160
16
17       Darwin LaClaire, Warden, Great Meadow
18       Correctional Facility,
19                Respondent-Appellee.
20
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:                        SALLY WASSERMAN, Law Office of
24                                             Sally Wasserman, New York, New
25                                             York.
26


                                                  1
 1   FOR APPELLEES:             LISA M. DENIG (Richard Longworth
 2                              Hecht, on the brief), Assistant
 3                              District Attorneys, for Janet
 4                              DiFiore, District Attorney of
 5                              Westchester County, White
 6                              Plains, New York.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Southern District of New York (Briccetti, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Andrew Lyons appeals from the denial of his petition
16   for a writ of habeas corpus challenging his New York State
17   conviction, following a jury trial, for depraved
18   indifference murder. See N.Y. Penal Law § 125.25[2].
19   Relying on a New York Court of Appeals decision
20   reinterpreting the elements of depraved indifference murder,
21   Lyons argues that the evidence at trial was insufficient as
22   a matter of law to prove that his actions displayed a
23   depraved indifference to human life. See People v. Suarez,
24   6 N.Y.3d 202 (2005).
25
26        The district court issued a certificate of
27   appealability to decide “whether, assuming petitioner’s
28   insufficiency claim is procedurally barred, the miscarriage
29   of justice exception applies.”
30
31        We consider the miscarriage-of-justice question de
32   novo. See Cornell v. Kirkpatrick, 665 F.3d 369, 374 (2d
33   Cir. 2011). We assume the parties’ familiarity with the
34   facts and record of prior proceedings.
35
36        “As a general rule, claims forfeited under state law
37   may support federal habeas relief only if the prisoner
38   demonstrates cause for the default and prejudice from the
39   asserted error.” House v. Bell, 547 U.S. 518, 536 (2006).
40   “The bar is not, however, unqualified.” Id. The Supreme
41   Court has recognized “a miscarriage-of-justice exception” in
42   circumstances necessary to “correct[] a fundamentally unjust
43   incarceration.” Id. (internal quotation marks omitted).
44   Lyons contends that his incarceration is unjust because the
45   jury was not charged on depraved indifference murder
46   consistent with the principles subsequently pronounced in
47   Suarez. This argument misapprehends the federal standard

                                  2
 1   for excusing procedural default. Miscarriage of justice
 2   occurs only “in an extraordinary case, where a
 3   constitutional violation has probably resulted in the
 4   conviction of one who is actually innocent.” Murray v.
 5   Carrier, 477 U.S. 478, 496 (1986). “‘[A]ctual innocence’
 6   means factual innocence, not mere legal insufficiency.”
 7   Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002)
 8   (alteration in original) (quoting Bousley v. United States,
 9   523 U.S. 614, 623 (1998)) (internal quotation marks
10   omitted). Moreover, that factual innocence requirement
11   applies not only to the count of conviction, but also to
12   charges that are equally or more serious. See Bousley, 523
13   U.S. at 624 (holding, in context of challenged conviction
14   based on guilty plea, that petitioner’s burden to
15   demonstrate actual innocence extends to more serious charges
16   forgone by government in course of plea bargaining).
17
18        Lyons does not argue that he is actually innocent of
19   killing his victim, Steven Donaldson. Instead, he argues
20   that it would be a miscarriage of justice to reject his
21   sufficiency claim as procedurally barred because he is
22   actually innocent of the particular crime of depraved
23   indifference murder, which requires the precise mens rea
24   outlined in Feingold. Specifically, Lyons asserts that
25   “none of [Lyons’] acts in this case, not carrying a cocked
26   gun through a few steps in [a] busy area, nor gesturing such
27   that the cocked gun was placed in proximity to the
28   decedent’s head, elevated the conduct at issue into depraved
29   indifference.” Appellant’s Br. at 32. We are not
30   persuaded.
31
32        Whether Lyons acted intentionally or with depraved
33   indifference, he killed Donaldson under circumstances that
34   New York criminal law denominates as second degree murder.
35   Such circumstances hardly present us with an “extraordinary
36   case,” Carrier, 477 U.S. at 496, of actual innocence
37   requiring us to address the merits of Lyons’ defaulted
38   sufficiency claim in order to avoid manifest injustice. See
39   Calderon v. Thompson, 523 U.S. 538, 559 (1998) (“[T]he
40   miscarriage of justice exception is concerned with actual as
41   compared to legal innocence.” (alteration in original)
42   (internal quotation marks omitted); Dunham, 313 F.3d at 730.
43   In any event, as the district court concluded, “a reasonable
44   jury could certainly have convicted petitioner of depraved
45   indifference murder . . . . Even if petitioner did not
46   intend to pull the trigger or shoot Donaldson, he
47   nonetheless brandished a loaded gun in the middle of the day

                                  3
 1   near a busy intersection after pulling the gun’s hammer back
 2   to create a ‘hair trigger,’ which he knew reduced the amount
 3   of pressure required to pull the trigger and thus made it
 4   easier to fire.”   It was reasonable for the jury to
 5   conclude, on such evidence, that Lyons’ actions evinced “an
 6   utter disregard for the value of human life.” Suarez, 6
 7   N.Y.3d at 214; see also Gutierrez v. Smith, 702 F.3d 103,
 8   114 (2d Cir. 2012) (ruling that the evidence was sufficient
 9   to support a conviction for depraved indifference murder
10   because “a reasonable jury could conclude that [the
11   petitioner] wielded his knife haphazardly, without intending
12   to kill anyone, but nevertheless indifferent as to whether
13   he inflicted fatal injuries”). Therefore, there is nothing
14   “fundamentally unjust,” House, 547 U.S. at 536 (internal
15   quotation marks omitted), about Lyons’ continued
16   incarceration for killing Donaldson by shooting him in the
17   head at point-blank range.
18
19        For the foregoing reasons, and finding no merit in
20   Lyons’ other arguments, we hereby AFFIRM the judgment of the
21   district court.
22
23                              FOR THE COURT:
24                              CATHERINE O’HAGAN WOLFE, CLERK
25




                                  4
