Holmes v. Brown

LARRY HOLMES, Petitioner, v. RICHARD BROWN, Superintendent, Respondent.

10-cv-03592 (CBA)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Filed: December 6, 2013

Dated: December 5, 2013

NOT FOR PUBLICATION

MEMORANDUM & ORDER

AMON, Chief United States District Judge.

Larry Holmes, proceeding pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks to vacate his 2002 New York State conviction, following a jury trial in the Supreme Court of New York, Kings County, for manslaughter in the first degree. Holmes raises three challenges to his conviction; (1) the trial court erred in its jury charge by failing to instruct the jury that if it found he was not guilty of murder in the second degree by reason of justification, it must also acquit him of manslaughter in the first degree by reason of justification; (2) his trial counsel rendered constitutionally ineffective assistance by failing to object to the trial court's justification charge; and (3) his appellate counsel rendered constitutionally ineffective assistance by failing to argue on direct appeal that his trial counsel was ineffective in failing to preserve his challenge to the jury instructions. For the reasons stated below, Holmes's petition is denied.

BACKGROUND

I. Trial, Conviction, and Sentencing

Holmes was indicted and charged with two counts of murder in the second degree (one count based on intent to murder and one based on "depraved indifference" murder), see N.Y.Penal Law § 125, 25, and one count of criminal possession of a weapon in the fourth degree, see N.Y. Penal Law § 265.01(2), in connection with the November 8, 2001 death of Allan Grayson.

A. The Trial

At trial, Ida Singleton, Grayson's stepmother, and her sister Detricia Isaac, both testified that on the evening of November 8, 2001, while sitting outside the home in which they and Grayson lived, they were approached by four people: Holmes, his sister Brandy, his friend Tiffany, and Rahim Boynton. (Trial Transcript ("Tr.") 107-08, 199-202.) Holmes asked Singleton and Isaac where Grayson was, and, after learning that he was inside the house, rang the doorbell. (Tr. 112-13.) Singleton testified that when Grayson came to the door, Holmes "threw the first punch," hitting Grayson (Tr. 116); Isaac likewise testified that Holmes began the hostilities, describing Holmes as having "push[ed]" Grayson (Tr. 204). Neither woman had a clear view of the fight that ensued (Tr. 122, 208-09); however, Singleton testified that after a couple minutes of fighting, Grayson suddenly retreated further into the house, and Holmes walked outside. (Tr. 122-24.) Isaac entered the house and found that Grayson had been stabbed. (Tr. 214-15.) Neither woman clearly saw either man holding a knife. However, Isaac testified that, as Holmes left the house after the fight, she saw him standing in the street with a "long silver object" of approximately seven to ten inches in length. (Tr. 211-12.) Isaac also testified that she saw nothing in either of Grayson's hands as he was walking down the stairs prior to the fight. (Tr. 222.) Several other members of Grayson's family treated him after the incident; they each testified that they did not see any knife on his person. (Tr. 267-68, 287-88.)

The government also elicited testimony from people who were with Holmes or Grayson earlier that evening. Keesha Graham testified that earlier in the evening, outside of Holmes's presence, Grayson had told her and Tiffany that he was going to hurt Holmes because of anearlier incident in which Holmes had choked him. (Tr. 484-85.) Boynton testified that, later in the evening, he drove Tiffany and Brandy to pick up Holmes, and Tiffany related Grayson's comments to Holmes. (Tr. 779-80.) Holmes responded by calling Grayson "a punk" and stating that "he was just going to step to it." (Tr. 780.) Boynton testified that he was instructed to drive back to Graham's house, located on Grayson's block (Tr. 781), where he observed Holmes, Tiffany, and Brandy speak briefly to Graham before walking toward Grayson's house (Tr. 510-11). Boynton did not see what happened when Holmes entered Grayson's house (Tr. 512), but testified that as he drove Holmes away after the incident, he did not see any blood on Holmes or elsewhere in the car. (Tr. 518.)

In defense, Holmes offered testimony from his girlfriend, Renee Land, and his sister, Brandy. Land, who was not present for the incident, testified that she had been present earlier in the evening when Grayson had stated that he was "going to F [Holmes] up." (Tr. 596.) Brandy testified that, during the incident, she saw Grayson holding a knife as he walked downstairs before the fight began. (Tr. 632.) During cross-examination, however, the government questioned Brandy about her grand jury testimony, in which she had testified that she did not clearly see a knife until she saw one on the floor after the fighting had started. (Tr. 685.)

B. The Jury Charge

On October 18, 2002, the court held a charge conference on the record. At the conference, the court informed the parties that it would submit three counts to the jury: murder in the second degree based on intentional killing; manslaughter in the first degree; and criminal possession of a weapon in the fourth degree. (Tr. 730-31.) The court also noted its intention to charge the jury on, inter alia, "self-defense," as well as to give an "expanded charge on initial aggressor." (Tr. 731.) Holmes's trial attorney raised three objections to the proposed jurycharge: one to the court's instruction that the State had no obligation to prove its case through any particular investigative technique, one regarding the fact that no weapon was found, and one regarding the initial aggressor charge. (Tr. 733-36.) All three objections were rejected by the court.

After informing the jury of the charges it was to consider and explaining to the jury that it should "only consider Manslaughter in the First Degree if you have found the defendant not guilty of the crime of Murder in the Second Degree" (Tr. 954), the court began its explanation of the justification defense:

Now, let me charge you, relative to those two counts, Murder in the Second Degree and Manslaughter in the First Degree, the defense of justification, or self-defense as it's commonly called, the defense of deadly physical force.

. . . .

Now, if the People have failed to establish all of the essential elements of the crime of Murder in the Second Degree and Manslaughter in the First Degree, as I have just instructed you, you must find the defendant not guilty. If that is your verdict, you need not, of course, consider the defendant's further defense of self-defense.

However, if you have determined that the People have established all of the elements of the crime of Murder in the Second Degree or Manslaughter in the First Degree, you must then turn to consider his defense known in the law as "justification," but which is commonly referred to as "self-defense." Even if a defendant is otherwise guilty, if you should determine that he acted in "self-defense" meaning with "justification" then you must, nevertheless, find him not guilty.

(Tr. 956-57.)

After instructing the jury on the meanings of "deadly physical force" and "serious physical injury," the court told the jury that "[i]n his defense to the charges of both murder and manslaughter the defendant raises the defense that he was legally justified in using deadly physical force against the victim in his own self-defense" (Tr. 958), and proceeded to instruct thejury on the elements of a justification defense. The court also informed the jury that the government must disprove the defense beyond a reasonable doubt, and concluded its justification charge by stating:

To sum up: The People are[] required to prove beyond a reasonable doubt, in addition to all of the elements of murder or manslaughter, as to which you have been instructed, that the defendant was not acting in self-defense. Unless the People prove to your satisfaction beyond a reasonable doubt that the defendant was not acting in self-defense, in accordance with my instructions on the law of self-defense, you must find the defendant not guilty of the crime of murder or manslaughter.

On the other hand, if the People do convince you beyond a reasonable doubt that the defendant was not acting in self-defense, you may then find the defendant guilty of the crime of murder or manslaughter.

(Tr. 965.)

The court finished charging the jury and, at a sidebar, asked the attorneys whether they had any objections. Holmes's counsel reiterated his objection to the initial aggressor instruction. (Tr. 973.) No other objections were raised by either party.

C. Conviction and Sentencing

The jury returned a verdict convicting Holmes of manslaughter in the first degree, but acquitting him of murder in the second degree and criminal possession of a weapon in the fourth degree. (Tr. 998-99.) The court sentenced Holmes principally to a determinate prison term of twenty-five years. (Sentencing Transcript at 12-13.)

II. Post-Conviction State Court Proceedings

In addition to directly appealing his conviction to the New York Appellate Division, Second Department, Holmes brought a motion pursuant to N.Y. Crim. Proc. Law § 440.10, and filed two motions for writs of error coram nobis.¹

A. Direct Appeal

Represented by new counsel, Holmes timely appealed his conviction to the Appellate Division, Second Department. Holmes raised two arguments on appeal: (1) that he was denied due process and a fair trial by the trial court's failure to instruct the jury that, should it find Holmes not guilty by reason of justification on the murder count, it should not consider the manslaughter count at all (a so-called "stop consideration" instruction); and (2) that his sentence was excessive in light of his lack of prior convictions and his work history. (Holmes Brief on Direct Appeal (Docket Entry ("DE") 2 at 8-25), at 3.)

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