10-795-cv
Harris v. Fischer

                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.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 9th day of September, two thousand eleven.

PRESENT:
            DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                           Circuit Judges,
            EDWARD R. KORMAN,
                           District Judge.*
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ANTONIO HARRIS,
          Petitioner-Appellant,

                    -v.-                                      10-795-cv

BRIAN FISCHER, WARDEN,
          Respondent-Appellee.
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      *
          The Honorable Edward R. Korman, of the United States
District Court for the Eastern District of New York, sitting by
designation.
FOR PETITIONER-APPELLANT:       ANDREW M. ST. LAURENT, Harris,
                                Cutler & Houghteling LLP, New York,
                                New York.

FOR RESPONDENT-APPELLEE:        DONNA A. MILLING, Assistant
                                District Attorney, for Frank A.
                                Sedita, III, District Attorney of
                                Erie County, Buffalo, New York.

             Appeal from the United States District Court for the

Western District of New York (Telesca, J.).     UPON DUE

CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that

the judgment of the district court is AFFIRMED.

             Appellant Antonio Harris appeals from a judgment of the

district court, dated February 19, 2010, denying his petition for

a writ of habeas pursuant to 28 U.S.C. § 2254.     On August 7,

1998, Harris and two others attempted to collect a debt from

Michael Organek, during which one of Harris's companions stabbed

Organek in the eye with a hollow metal rod, resulting in his

death four days later.     In January 1999, Harris was charged with

four counts of murder in the second degree, one count of

attempted robbery in the first degree, one count of burglary in

the first degree, one count of criminal possession of a weapon in
the fourth degree, and criminal possession of a controlled

substance in the third degree.    The murder counts consisted of

one count of intentional murder, one count of depraved

indifference murder, and two counts of felony-murder.      After a

jury trial in Erie County, Harris was found guilty of all charges

except the intentional murder charge, as to which he was

acquitted.

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           Prior to sentencing, Harris moved to set aside the

verdict pursuant to New York Criminal Procedure Law § 330.30,

alleging that the evidence was insufficient to sustain the

verdict.   The trial court granted the motion in part on October

20, 1999, setting aside Harris's convictions for depraved

indifference murder, weapon possession, and possession of a

controlled substance.   On October 28, 1999, Harris was sentenced

to concurrent, indeterminate terms of imprisonment of twenty

years to life on each of the two felony-murder counts, seven and

a half to fifteen years for the attempted robbery conviction, and

twelve and a half to twenty-five years for the burglary

conviction.   On direct appeal, the Appellate Division affirmed.

People v. Harris, 767 N.Y.S.2d 347 (4th Dep't 2003), leave to

appeal denied, 2 N.Y.3d 740 (2004).1

           On March 11, 2005, Harris filed the § 2254 petition

below, challenging his conviction on four grounds:   ineffective

assistance of counsel; prosecutorial misconduct (including a

Batson claim); insufficiency of evidence to support the robbery

and burglary convictions; and establishment of an affirmative

defense to felony-murder.   The district court rejected Harris's

Batson argument on the merits and held that his remaining
arguments were procedurally defaulted.   On appeal, Harris

challenges only the district court's denial of his claim with

respect to his affirmative defense.


     1
          Harris also moved to vacate his conviction pursuant to
New York Criminal Procedure Law § 440.10, twice, on December 11,
2003 and February 15, 2005. Both motions were denied.

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           This Court reviews the denial of a petition for a writ

of habeas corpus de novo.   Ortiz v. N.Y.S. Parole in Bronx, N.Y.,

586 F.3d 149, 155 (2d Cir. 2009).     Under § 2254's exhaustion

requirement, 28 U.S.C. § 2254(b), (c), each argument advanced in

a federal habeas petition must first have been exhausted through

state remedies -- that is, presented to the state's highest

court, Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005).    The

petitioner must have "fairly apprised" the state court of the

factual and legal premises of the federal constitutional claim.

Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991).     In New York, a

defendant seeking further appeal in a criminal case must apply

for leave to appeal by letter application to the Court of

Appeals.   N.Y. Court Rules § 500.10(a) (current version at N.Y.

Court Rules § 500.20(a) (2005)).    The district court held below

that Harris procedurally defaulted his affirmative defense claim

because he insufficiently alerted the Court of Appeals to the

claim in his letter application.

           We have previously held that if a defendant's leave

application presents his claims in such a way that "eliminate[s]

issues as to which review had been expressly requested," Morgan
v. Bennett, 204 F.3d 360, 371 (2d Cir.), cert. denied, 531 U.S.

819 (2000), those issues are procedurally defaulted and cannot be

asserted in a subsequent federal habeas petition.     On the other

hand, if a defendant's leave application "clearly state[s] that

he [is] pressing all of the claims raised in [an] attached

[Appellate Division] brief," the Court of Appeals is considered

to have been fairly apprised of all of those claims.    Jordan v.


                                -4-
Lefevre, 206 F.3d 196, 199 (2d Cir. 2000).     We have found such a

clear statement within a leave application that briefly but

"expressly <request[ed] this Court to consider and review all

issues outlined in defendant-appellant's [attached] brief.'"

Morgan, 204 F.3d at 370-71 (citing defendant's letter

application).

           In this case, Harris's leave application to the New

York State Court of Appeals discussed only his Brady and fair-

trial claims in detail, but concluded with a request that "this

Court consider and review all issues outlined in appellant's

[Appellate Division] brief."     (Appellant App. 135).   Although

Harris had discussed one section of the brief at length in his

letter, he unambiguously stated that he wished to press "all" of

the issues he had presented to the Fourth Department, including

his affirmative defense claim.    Cf. Grey, 933 F.2d at 20 (holding
additional arguments in brief defaulted where leave application

letter urged one claim but made no mention of remaining arguments

in attached brief).    Thus, the district court erred in holding

that Harris abandoned his affirmative defense claim before the

Court of Appeals.

           Nonetheless, we hold that Harris's sufficiency-of-the-

evidence claim regarding his affirmative defense to felony-murder

fails on the merits.    First, the Due Process Clause of the

Fourteenth Amendment protects a defendant only with respect to

the sufficiency of evidence establishing the elements of an

offense.   Jackson v. Virginia, 443 U.S. 307, 315 (1979) (quoting

                                  -5-
In re Winship, 397 U.S. 358, 364 (1970)).    Harris's burden of

proving his affirmative defense to felony-murder in New York,

N.Y. Penal Law § 125.25(3)(a)-(d) (McKinney 2009), however, did

not in any way "detract" from the State's burden of proving any

element of the offense at trial beyond a reasonable doubt.     See

Caldwell v. Russell, 181 F.3d 731, 740 (6th Cir. 1999) (citing

Jackson, 443 U.S. at 315).

          Second, even if Harris's claim were cognizable under

habeas review, cf. Murden v. Artuz, 497 F.3d 178, 195 (2d Cir.

2007) (reaching affirmative defense of extreme emotional

disturbance in relation to habeas claim of actual innocence),

Harris has failed to demonstrate that a rational jury could only

have found that he proved the affirmative defense.    Pursuant to

New York Penal Law § 125.25(3)(d), Harris had to prove, inter
alia, that he "had no reasonable ground to believe that any other

participant intended to engage in conduct likely to result in

death or serious physical injury."    N.Y. Penal Law § 125.25(3)(d)

(McKinney 2009).   See People v. Bornholdt, 33 N.Y.2d 75, 86

(1973) (holding that, to invoke affirmative defense, defendant

must show that he had "nothing to do with the killing itself

. . . and had no idea that any of his confederates was armed or

intended to engage in any conduct dangerous to life").

          Indeed, the evidence at trial established that Harris

recruited Robert Hennegan and Anthony Franklin to help him get

money from Organek, the three men followed Organek into his

apartment, and Harris was the first to hit Organek.   Harris

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testified that he went to North Street to help LaTwett Harris,

who told him she had "a problem" and that he "should bring [his]

boys."   (Trial Tr. vol. 4, 474-75, July 7, 1999).    Harris's

intent when he entered Organek's apartment was to force Organek

to get the money Organek owed LaTwett.     Indeed, in his post-

arrest confession, he admitted that, if he did not get the money,
"I was going to beat him.    I was going to fight him."      (Trial Tr.

vol. 3, 370, July 6, 1999).    In light of this evidence, a

rational jury could have found that Harris had reasonable ground

to believe there would be conduct likely to result, at the very

least, in serious physical injury.

           We have considered Harris's other arguments on appeal

and have found them to be without merit.    Accordingly, the

decision of the district court is hereby AFFIRMED.



                            FOR THE COURT:
                            CATHERINE O'HAGAN WOLFE, CLERK




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