09-5318-pr
DeLeon v. Lempke
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH TH IS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 1st day of
December, two thousand ten.

Present:
           JON O. NEWMAN,
           GUIDO CALABRESI,
           ROBERT A. KATZMANN,
                      Circuit Judges.

________________________________________________

JOSE DELEON,

           Petitioner-Appellant,

                   v.                                           No. 09-5318-pr

JOHN LEMPKE, Superintendent,
Five Points Correctional Facility,

         Respondent-Appellee.
________________________________________________

For Petitioner-Appellant:                AMY I. DONNER, The Legal Aid Society, New York,
                                         N.Y.

For Respondent-Appellee:                 LEONARD JOBLOVE (Victor Barall and Terry-Ann
                                         Llewellyn, on the brief), for Charles J. Hynes, District
                                         Attorney, Kings County, Brooklyn, N.Y.
      Appeal from the United States District Court for the Eastern District of New York
(Cogan, J.).

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

        Petitioner-Appellant Jose DeLeon was convicted following a jury trial in Supreme Court

of the State of New York, Kings County, of manslaughter in the second degree and criminal

possession of a weapon in the third degree. After exhausting his appeals in state court, DeLeon

brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the ground that

the trial court’s refusal to charge the jury on the defense of justification violated his due process

rights to a fair trial and to present a defense. The district court denied his petition. On appeal,

DeLeon argues that the district court erred in holding that the “only reasonable view of the

evidence” was that DeLeon (1) was the initial aggressor in the gun battle, (2) was defending

neither himself nor others when he drew and fired his gun, and (3) could have retreated safely.

We assume the parties’ familiarity with the facts and procedural history of the case.

        We review de novo a district court’s denial of a petition for a writ of habeas corpus,

Harris v. Kuhlman, 346 F.3d 330, 342 (2d Cir. 2003), and its findings of fact for clear error,

Jenkins v. Artuz, 294 F.3d 284, 290 (2d Cir. 2002). This Court must resolve three questions in

evaluating a habeas corpus claim arising from a state court’s refusal to give a requested

justification charge: “First, was [the defendant] entitled to a justification charge? Second, if so,

did the failure to give one result in a denial of due process? Third, if so, did the state court’s

contrary conclusion constitute an unreasonable application of clear Supreme Court law?”

Jackson v. Edwards, 404 F.3d 612, 621 (2d Cir. 2005).



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       This Court’s role “is not to interpret New York’s law of justification, but to determine

whether the evidence was sufficient to warrant a justification charge under that law.” Davis v.

Strack, 270 F.3d 111, 123 n.4 (2d Cir. 2001). New York Penal Law § 35.15 provides that the use

of force is justified in the following circumstances:

       1. A person may, subject to the provisions of subdivision two, use physical force
       upon another when and to the extent he reasonably believes such to be necessary
       to defend himself or a third person from what he reasonably believes to be the use
       or imminent use of unlawful physical force by such other person . . . .

       2. A person may not use deadly physical force upon another person under
       circumstances specified in subdivision one unless:

               (a) He reasonably believes that such other person is using or about to use
               deadly physical force. Even in such case, however, the actor may not use
               deadly physical force if he knows that he can with complete safety as to
               himself and others avoid the necessity of so doing by retreating . . . .

N.Y. PENAL LAW § 35.15 (McKinney 1997). The term “deadly physical force” is defined as

“physical force which, under the circumstances in which it is used, is readily capable of causing

death or other serious physical injury.” Id. § 10.00(11).

       A justification charge is warranted “if on any reasonable view of the evidence, the fact

finder might have decided that defendant’s actions were justified.” People v. Padgett, 60 N.Y.2d

142, 145 (1983); see also Davis, 270 F.3d at 124. In determining whether the evidence warrants a

justification charge, the reviewing court must view the record in the light most favorable to the

defendant. See People v. McManus, 67 N.Y.2d 541, 549 (1986). “The rule is that the jury must

be instructed on all claimed defenses which are supported by a reasonable view of the evidence –

not by any view of the evidence, however artificial or irrational.” People v. Butts, 72 N.Y.2d

746, 750 (1988) (emphasis in original).



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       The leading New York cases construing the justification defense, see Matter of Y.K., 87

N.Y.2d 430 (N.Y. 1996); People v. Goetz, 68 N.Y.2d 96 (1986), set forth a two-part test: The

fact-finder must determine (1) that the defendant believed deadly physical force was necessary

and (2) a reasonable person would have believed the use of deadly physical force was necessary

in the same circumstances. See Y.K., 87 N.Y.2d at 433-34; Goetz, 68 N.Y.2d at 114-15. Where a

defendant who is confronted with deadly physical force “knows he can retreat with complete

safety but fails to do so, the justification defense is lost.” Jackson, 404 F.3d at 623 (citing Y.K.,

87 N.Y.2d at 434; N.Y. PENAL LAW § 35.15(2)(a)). Moreover, a defendant who is the initial

aggressor cannot claim the justification defense. See, e.g., People v. Holden, 260 A.D.2d 233,

234 (1st Dep’t 1999).

       Having carefully reviewed the record in the light most favorable to DeLeon, we conclude

that no reasonable view of the evidence supported a justification charge. The district court did

not err in concluding that (1) the only reasonable inference from the record is that DeLeon had

his gun drawn first, (2) there was no evidence that he fired his gun in self-defense or in defense

of another, and (3) the record did not permit the inference that DeLeon was unable to escape

safely. DeLeon v. Lempke, No. 09 Civ. 2310 (BMC), 2009 WL 4498006, at *2-3 (E.D.N.Y. Dec.

2, 2009). Accordingly, DeLeon’s contention that the trial court’s denial of his request for a

justification charge violated his due process rights is without merit.

       We have considered DeLeon’s remaining arguments and find them to be unavailing. For

the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                       FOR THE COURT:
                                                       CATHERINE O’HAGAN WOLFE, CLERK



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