McPherson v. Keyser

FRANKLIN MCPHERSON, Petitioner, v. WILLIAM KEYSER, Jr., Superintendent, Sullivan Correctional Facility, Respondent.

15-CV-1250 (SJF)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 15, 2019

MEMORANDUM & ORDER

FEUERSTEIN, District Judge:

Franklin McPherson ("McPherson" or "Petitioner") petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. §2254, challenging his 2008 conviction in New York Supreme Court, Nassau County, whereby he was found guilty of, inter alia, (1) murder in the second degree ("depraved indifference murder") in violation of N.Y. PENAL LAW §225.25(2); (2) vehicular manslaughter in the first degree in violation of N.Y. PENAL LAW §225.13(1); (3) criminal possession of a controlled substance in the seventh degree in violation of N.Y. PENAL LAW §220.03; and (4) criminal possession of a weapon in the second degree in violation of N.Y. PENAL LAW §265.03(1)(b).¹ For the reasons set forth below, the petition is denied.

I. BACKGROUND

A. Factual Background²

Shortly after 12:00 a.m. on October 19, 2007, McPherson and his cousin, Roman Taylor, traveled in McPherson's Lexus to a nightclub in Hempstead, New York. Tr. 838, 847.McPherson's girlfriend, Crystal Green,³ and a friend of Green's, Delroy McCalla drove to the club separately in McCalla's car. The group left the club at approximately 3:15 a.m. McCalla testified that at the time, Taylor was "really drunk," id. at 851, but McPherson did not appear intoxicated. Id. at 852-53.

Once outside, they walked to a fence by the parking lot and Taylor sat down on the ground, at which point, McPherson became upset, repeating that he had lost something and went to look in the area behind his car before returning to the fence. Tr. 857. As Taylor was unable to walk without assistance, McPherson, McCalla, and Green helped him to McPherson's car and put him in the backseat to lie down. Id. at 870-74. Green and McPherson were arguing, and McCalla got into his car. Id. McPherson searched through the trunk of his car, then went to the passenger side. Id. at 867. Soon thereafter, witnesses, including McCalla, heard gunshots. There was no direct testimony about who actually fired a gun. Taylor had remained in the backseat of McPherson's car throughout the arguments and gunfire. Id. at 880. McCalla left with Green in his car after the shots were fired. Upon investigating calls about shots fired, the police found five 9-millimeter shell casings in the parking lot. Id. at 884-88.

At approximately 3:30 a.m., McPherson's car was seen driving the wrong way, west in the eastbound lanes, of the Southern State Parkway at speeds of about 70 to 75 miles per hour. Tr. 1067-69. Witnesses testified that cars were veering to avoid McPherson's car, but that McPherson moved steadily without braking or trying to avoid the other vehicles. Id. at 1038-43, 1269-70. A construction worker saw McPherson driving directly toward him and blew the air horn on his Mack truck for three or four seconds. Id. at 1075. McPherson's car passed by without slowing down or changing lanes. Id. at 1074-75, 1083. McPherson traveled in thewrong direction for about five miles, passing eight "wrong way" signs and the backs of 21 signs that appeared to be dark gray with no writing since the words were only visible if one were driving eastbound in the correct direction. Id. at 988-94.

Near exit 13, McPherson, without slowing down, collided head-on with a Jeep, killing its driver, Leslie Burgess, instantly, and incinerating the Jeep. Defendant was arrested and his blood alcohol content ("BAC") from a sample taken at 4:49 a.m. was measured at 0.19%. Tr. 544, 547, 700-01. During an inventory search of McPherson's car, the police found multiple rounds of 9-millimeter ammunition in the trunk, an unloaded 9-millimeter handgun in the front of the car, and a plastic bag containing cocaine, also in the car. Id. at 556-61, 589-90, 618, 903-04. The handgun recovered from the car matched the shell casings found in the parking lot near the nightclub. Id. at 947.

B. Procedural Historye4c

1. Trial and Sentencing

After a jury trial, McPherson was found guilty of multiple charges including depraved indifference murder and criminal possession of a weapon in the second degree. He was sentenced to concurrent sentences, the longest of which was twenty-five (25) years to life imprisonment on the depraved indifference murder charge.

2. Direct Appeal

Petitioner filed a Notice of Appeal of his conviction, raising, inter alia⁴, the following issues: (1) ineffective assistance of counsel; and (2) that the evidence was legally insufficient as to (a) depraved indifference murder, and (b) criminal possession of a weapon. The AppellateDivision affirmed the judgment of conviction in a decision dated November 1, 2011, finding that McPherson's contention that the evidence was legally insufficient to support his conviction of murder in the second degree and criminal possession in the second degree was "unpreserved for appellate review." People v. McPherson, 89 A.D.3d 752, 754, 932 N.Y.S.2d 85 (2d Dep't 2011). That court went on to find that "[i]n any event, viewing the evidence in the light most favorable to the prosecution . . . we find that it was legally sufficient to establish [McPherson's] guilt of those crimes beyond a reasonable doubt." Id. (citations omitted). As to the claim of ineffective assistance of counsel, the Appellate Division found, without discussion, that "defendant was not deprived of the effective assistance of counsel as defense counsel provided meaningful representation." Id. at 758-59.

Petitioner further appealed to the Court of Appeals, again raising the arguments regarding the legal sufficiency of the evidence and ineffectiveness of trial counsel. The Court of Appeals acknowledged that the Appellate Division had found that McPherson's legal sufficiency arguments were "unpreserved for review and, in any event, without merit," People v. Heidgen,⁵ 22 N.Y.3d 259, 274, 3 N.E.3d 657, 980 N.Y.S.2d 320 (2013), and did not further discuss those issues in the context of whether there was legally sufficient evidence to support his conviction. The Court did, however, discuss the evidence on the depraved indifference murder charge in the context of McPherson's ineffective assistance of counsel claim. It noted that, in discussing formulation of the jury charge, the trial judge specifically discussed the case of People v. Feingold, 7 N.Y.3d 288, 852 N.E.2d 1163, 819 N.Y.S.2d 691 (2006), which "conclusively established depraved indifference as a culpable mental state," Heigden, 22 N.Y.3d at 278, and inparticular questioned whether the holding "applied if the defendant had been oblivious to his surroundings." Id. The Court found that under these circumstances, defense counsel "should have moved to dismiss the charge of depraved indifference murder." Id. The Court went on, however, to determine that such a motion "would not have been successful," id. at 279, in light of the "ample evidence supporting the conclusion that defendant was aware that he was driving on the wrong side of the road and continued to do so with complete disregard for the lives of others." Id. Therefore, the Court of Appeals concluded, McPherson was not prejudiced and "otherwise received meaningful representation." Id. The Court also found that "[s]ince there was no reasonable probability that the result would have been different, defendant's claim also fails under the federal standard." Id. (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 274 (1984)). The Court of Appeals considered McPherson's remaining arguments and found them "to be without merit." Heigden, 22 N.Y.3d at 280.

McPherson's petition for certiorari filed with the United States Supreme Court was denied on December 15, 2014. McPherson v. New York, 135 S. Ct. 873, 190 L. Ed. 2d 708 (2014). He has not filed a motion for relief under section 440.10 of the New York Criminal Procedure Law.

3. Habeas Petition

McPherson's habeas petition⁶ challenges his conviction on the following grounds: (1) the trial evidence was legally insufficient to support the second degree murder conviction where the proof demonstrated he was too intoxicated to form the requisite intent for depraved indifference murder; (2) trial counsel was ineffective in (a) failing to move to dismiss the depraved indifference murder count on the ground that McPherson was too intoxicated to formthe requisite intent, and (b) pursuing an invalid defense based on the misidentification of the victim; and (3) the evidence was insufficient to establish possession of a loaded firearm as the gun was unloaded when recovered by the police. Respondent argues Petitioner's first and third claims regarding the legal sufficiency of evidence are procedurally barred from review and that the state court's decision that Petitioner received effective assistance of counsel at trial was not contrary to, and did not involve an unreasonable application of, clearly established federal law.

II. LEGAL STANDARDS

A. Standard of Review

"It is well established that a federal habeas court does not sit to correct a misapplication of state law, unless such misapplication violates the Constitution, laws, or treaties of the United States." Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002). Pursuant to 28 U.S.C. §2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, a habeas court considering a claim that was decided on the merits in a state court proceeding may grant relief only if the state court's decision was "(1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. §2254(d). A state court decision is considered "contrary to" federal law if it either "applies a rule that contradicts the governing law...