     11-3488
     Johnson v. Bellnier
 1
 2                           UNITED STATES COURT OF APPEALS
 3                               FOR THE SECOND CIRCUIT
 4
 5                                SUMMARY ORDER
 6
 7   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
 8   TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
 9   AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND
10   THIS COURT’S LOCAL RULE 32.1. WHEN CITING A SUMMARY ORDER IN A
11   DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
12   FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
13   “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
14   OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
15
16         At a stated term of the United States Court of Appeals for
17   the Second Circuit, held at the Thurgood Marshall United States
18   Courthouse, 40 Foley Square, in the City of New York, on the
19   25th day of January, two thousand thirteen.
20
21   PRESENT:
22
23         John M. Walker, Jr.,
24         Robert A. Katzmann,
25         Debra Ann Livingston,
26                   Circuit Judges.
27
28   -------------------------------------------X
29
30   KEITH JOHNSON,
31
32                         Petitioner-Appellee,
33
34                - v. -                                No. 11-3488-pr
35
36   J.F. BELLNIER, Superintendent,
37
38                         Respondent-Appellant.
39
40   -------------------------------------------X
41
42
43
44   FOR APPELLEE:                       ELIZABETH DELAHUNTY (Stephen N.
45                                       Dratch on the brief), Franzblau
46                                       Dratch, P.C., Livingston, NJ, for
47                                       Petitioner-Appellee.
48
 1   FOR APPELLANT:                 SOLOMON NEUBORT (Leonard Joblove on
 2                                  the brief), Kings County District
 3                                  Attorney’s Office, Brooklyn, NY,
 4                                  for Respondent-Appellant.
 5
 6
 7        Appeal from a judgment of the United States District Court

 8   for the Eastern District of New York (Kiyo A. Matsumoto, Judge).

 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

10   DECREED that the district court’s judgment is REVERSED.

11        J.F. Bellnier, for the State of New York (“the State”),

12   appeals from the district court’s grant of Keith Johnson’s

13   petition for habeas corpus.   Johnson was earlier convicted of

14   depraved indifference murder under New York law.   The State

15   argues that Johnson procedurally defaulted on his legal

16   insufficiency claim in New York courts, and that he cannot show

17   “actual innocence” which would allow a federal habeas court to

18   review his claim despite the procedural bar.   The district court,

19   adopting the report and recommendation of a magistrate judge,

20   held that based on the change in the underlying state law

21   pertaining to depraved indifference murder, Johnson had proven

22   his “actual innocence” of that crime, such that it could reach

23   the substance of his legal insufficiency claim.    Finding that the

24   facts of Johnson’s case did not support conviction under New

25   York’s then-current depraved indifference murder mens rea

26   requirement, the district court granted Johnson’s petition for



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 1   habeas corpus.    See Johnson v. Bellnier, 2011 WL 3235708, No. 09-

 2   cv-00381, (E.D.N.Y. July 27, 2011).

 3        The following evidence was presented against Johnson at

 4   trial.   On September 23, 2002, while riding with friends, Johnson

 5   spotted Calvin Chandler driving Johnson's car without permission.

 6   Johnson climbed into the driver's seat, Chandler moved to the

 7   passenger seat, and a third friend got in the back.     At some

 8   point, individuals in the two cars stopped for beer and cigars.

 9   They then met up at the Marlboro Houses, located in a residential

10   area in Brooklyn.

11        One man, whom Johnson later said he did not know, hit

12   Chandler over the head with a gun.      Chandler fell to the ground,

13   but then stood up and approached Johnson, who took a gun from

14   another friend.   Chandler fled, and Johnson pursued him, firing

15   at him approximately ten times.    Six of the bullets struck Mr.

16   Chandler, two fatally.   According to experts, all shots were

17   fired from the same gun and were fired from more than eighteen

18   inches away.    After the shooting, Johnson fled the crime scene,

19   later traveling to Virginia before returning to New York and

20   meeting with police.

21        Johnson confessed to the above events, both in writing and

22   on videotape.    He also stated that he feared that if Chandler

23   left the scene, then he (Johnson) "would have been dead" and that

24   he had "no choice" but to chase down and shoot Chandler.

                                       -3-
 1        Johnson was indicted and charged with intentional murder and

 2   depraved indifference murder under New York Penal Law §§ 125.25

 3   (1) and (2).   The mens rea required to convict a person of

 4   depraved indifference murder was different at the time of

 5   Johnson’s trial than it is now.    Johnson was convicted on June

 6   18, 2003, under the standard articulated in People v. Register,

 7   60 N.Y.2d 270 (1983).   A recent opinion of this Court summarized

 8   the Register requirements:
 9             Under the so-called “Register regime,” in
10             order to convict a defendant on a charge of
11             depraved-indifference murder, a jury was
12             required to find, beyond a reasonable doubt,
13             that the defendant “(1) recklessly engaged in
14             conduct (2) which created a grave risk of
15             death to another person (3) thereby causing
16             the death of another person (4) under
17             circumstances evincing a depraved
18             indifference to human life.” Policano v.
19             Herbert, 7 N.Y.3d 588, 602 (2006)
20             (summarizing the law as of June 28, 2001).
21             The mens rea for depraved-indifference murder
22             was recklessness, and the statutory phrase
23             “‘under circumstances evincing a depraved
24             indifference to human life’ defined the
25             factual setting, viewed objectively, in which
26             the risk-creating conduct occurred.” Id.
27   Epps v. Poole, 687 F.3d 46, 51 (2d Cir. 2012).    In a series of

28   cases between 2003 and 2006, including People v. Hafeez, 100

29   N.Y.2d 253 (2003), People v. Gonzalez, 1 N.Y.3d 464 (2004),

30   People v. Payne, 3 N.Y.3d 266 (2004), People v. Suarez, 6 N.Y.3d

31   202 (2005), and People v. Feingold, 7 N.Y.3d 288 (2006), the law

32   incrementally changed, and in Feingold, the New York Court of

                                       -4-
 1   Appeals overturned the rule in Register by changing the mens rea

 2   requirement from recklessness to depraved indifference to human

 3   life.    See Epps, 687 F.3d at 51-52.

 4           The substance of New York’s crime of depraved indifference

 5   murder is not at issue in this case, which focuses instead on

 6   petitioner’s procedural rights to federal habeas review.     This

 7   court reviews a district court’s grant of a habeas corpus

 8   petition de novo.     Somerville v. Hunt, 695 F.3d 218, 221 (2d Cir.

 9   2012).    Johnson does not argue that he properly preserved his

10   legal insufficiency argument; rather, he asserts only that his

11   case falls in the small group of cases to which an equitable

12   exception for “miscarriage of justice” applies.

13           In most cases, a petitioner who is procedurally barred from

14   making a legal insufficiency argument in state court must show

15   “cause” for and “prejudice” from the procedural default in order

16   to obtain federal habeas review of a defaulted constitutional

17   claim.    See Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

18   Although “for the most part, ‘victims of a fundamental

19   miscarriage of justice will meet the cause-and-prejudice

20   standard,’” “where a constitutional violation has probably

21   resulted in the conviction of one who is actually innocent, a

22   federal habeas court may grant the writ even in the absence of a

23   showing of cause for the procedural default.” Murray v. Carrier,

24   477 U.S. 478, 496 (1986) (internal citations omitted).

                                       -5-
 1        Establishing actual innocence is not easy.     “To establish

 2   actual innocence, petitioner must demonstrate that, ‘in light of

 3   all the evidence,’ ‘it is more likely than not that no reasonable

 4   juror would have convicted him.’”      Bousley v. United States, 523

 5   U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-

 6   28 (1995)).   Actual innocence requires “factual innocence, not

 7   mere legal insufficiency.” Id.   A claim of actual innocence “is

 8   not itself a constitutional claim, but instead a gateway through

 9   which a habeas petitioner must pass to have his otherwise barred

10   constitutional claim considered on the merits.”     Herrera v.

11   Collins, 506 U.S. 390, 404 (1993).

12        For the purposes of this order, we assume without deciding

13   that Johnson’s procedural default could be excused.     Even with

14   this assumption, however, Johnson cannot make out a valid legal

15   insufficiency claim.1   In cases challenging the sufficiency of

16   the evidence of a state-court criminal conviction, “the relevant

17   question is whether, after viewing the evidence in the light most

18   favorable to the prosecution, any rational trier of fact could

19   have found the essential elements of the crime beyond a

20   reasonable doubt.”   Jackson v. Virginia, 443 U.S. 307, 319

21   (1979).   On the trial record, a rational trier of fact could have


     1
       Johnson contends that the deferential standard set forth in 28
     U.S.C. § 2254(d) does not apply in this case. Since we conclude
     that Johnson’s claim fails even without applying § 2254(d), we
     need not reach the issue.

                                      -6-
 1   found Johnson guilty of depraved indifference murder beyond a

 2   reasonable doubt.   Merely arguing that his killing of Chandler

 3   was intentional is insufficient.   Johnson fired a gun

 4   approximately ten times down a street in the dark at a fleeing

 5   victim.   He fled not only the scene of the crime, but the state,

 6   soon after the shooting.   A reasonable jury could have concluded

 7   that Johnson’s actions illustrated depraved indifference not only

 8   to Chandler, but also to any other people on the street that

 9   could have been struck by his bullets.   Similar to another recent

10   decision, Garbutt v. Conway, which also contemplated the

11   possibility of an intentional murder, “a reasonable jury could

12   equally have found that [Johnson] had struck out . . . without

13   specifically intending to cause death, but with an awareness that

14   his conduct could have deadly consequences.”   668 F.3d 79, 82 (2d

15   Cir. 2012).

16      For the foregoing reasons, the district court’s judgment is

17   REVERSED.
18
19
20
21                              FOR THE COURT:
22                              Catherine O’Hagan Wolfe, Clerk of Court
23
24




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