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Case 1:12-cv-00476-MAT Document 11 Filed 09/19/13 Page 1 of 16

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JAMES R. STANFORD,

-vs-

MARK BRADT,

Petitioner,

No: 1:12-CV-00476-MAT
DECISION AND ORDER

Respondent.

I.

Introduction
James R. Stanford (“Petitioner”) has filed a petition for a
writ of habeas corpus application pursuant to 28 U.S.C. § 2254,
alleging that he is being held in Respondent’s custody in violation
of his federal constitutional rights. Petitioner’s state custody
arises from a judgment of conviction entered against him on
September 26, 2007, following a jury trial in Monroe County Court
of New York State, on one count of Manslaughter in the First Degree
(N.Y. Penal Law § 125.20(1)).
II. Factual Background

On November 7, 2006, in the City of Rochester, Petitioner met
Barbara Thomas (“Thomas”), and the two smoked crack-cocaine behind
a church. Thomas accompanied Petitioner back to his apartment where
they smoked two additional bags of crack-cocaine. Petitioner
requested that Thomas engage in sexual relations with him, but she
refused. Petitioner then heard a loud bang on the door. As he
walked to the door to see who was there, he pulled a folding knife
from his pocket and opened it. Finding nothing outside the door, he

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returned to the bedroom with the knife in hand. According to
Petitioner, Thomas grabbed him, and he then stabbed her in the
chest area with a folding knife in order to free himself.

Petitioner pushed Thomas to the ground, and as he ran to the
door, he heard the sound of breaking glass in the bedroom. Upon
leaving the house, he saw a man standing outside on the sidewalk.
Petitioner, who still had the knife in his hand, climbed over a
fence, ran to a payphone, and called 911. He reached Officer Brian
Costello and explained that he had been “partying” with a woman at
a house on Remington Street. Petitioner “felt that she was going to
set him up to get robbed by her boyfriend, at which point he said
he had to get out of the location[.]” Petitioner told the officer
that he “possibly hurt her when he left the location.”

When Officer Costello arrived at Petitioner’s location, he
placed him the back of his patrol car and took him to Remington
Street where they found Thomas, who had sustained a number of stab
wounds, lying on a nearby porch. There was a pool of blood in the
driveway, and a trail of blood leading to a broken window at
343 Remington Street.

The autopsy revealed that Thomas had suffered four stab wounds
to the left side of the neck, chin and jaw region, as well as
superficial sharp force injuries to her left cheek and to the palm
of her right hand. The direction of all the wounds was from the
front of the body to the back. The lowest wound also went upward,

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towards the head, as did the stab wound to the upper neck. One of
the wounds severed the carotid artery and the left jugular vein,
causing Thomas’s death.

The jury acquitted petitioner of second degree murder and
found him guilty of first degree manslaughter. On September 26,
2007, Petitioner was sentenced, as a second violent felony
offender, to a determinate term of 20 years imprisonment, plus five
years of post-release supervision.

Represented by counsel, Petitioner appealed to the Appellate
Division, Fourth Department, of New York State Supreme Court and
argued that (1) the trial court erred in failing to instruct the
jurors that they could consider the charge of second degree
manslaughter; (2) the trial court erred in failing to deliver a
justification charge; (3) the trial court erred in failing to give
a circumstantial evidence charge; and (4) the sentence was harsh
and excessive.

By Decision and Order dated September 30, 2011, the Appellate
Division unanimously affirmed the judgment of conviction. People v.
Stanford, 87 A.D.3d 1367 (4th Dep’t 2011). Petitioner sought leave
to appeal to appeal to the New York State Court of Appeals. On
January 31, 2012, a judge of the New York Court of Appeals denied
leave. People v. Stanford, 18 N.Y.3d 886 (2012).

Proceeding pro se, Petitioner filed the instant habeas
petition, claiming that (1) the trial court erred in failing to

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charge the lesser included offense of Manslaughter in the Second
Degree; (2) the trial court erred in failing to charge the jury on
the law of justification; (3) the prosecutor committed misconduct
during summation; and (4) the sentence was harsh and excessive.

Respondent answered the petition, acknowledging that it is
timely but arguing that all of the claims are unexhausted and
procedurally barred and are, in any event, without merit or non-
cognizable. Petitioner has not filed a reply.

This matter has been transferred to the undersigned for
disposition. For the reasons set forth below, Petitioner’s request
for a writ of habeas corpus is denied, and the petition is
dismissed.
III. Exhaustion of State Remedies
General Legal Principles

A.
A habeas petitioner generally must exhaust all state-provided
remedies before seeking review in federal district court. See 28
U.S.C. § 2254(a); O’Sullivan v. Boerckel, 526 U.S. 838, 843-44
(1999). The exhaustion requirement means that a petitioner must
fairly present to the state court the same federal constitutional
claim that he wishes to raise in federal court.

The Second Circuit has explained that “[a] defendant may . .
. fairly present the substance of a federal constitutional claim to
the state court without citing ‘“book and verse on the federal
constitution.”’” Daye v. Attorney Gen’l of N.Y., 696 F.2d 186, 192

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(2d Cir. 1982) (en banc) (quoting Picard v. Connor, 404 U.S. 270,
278 (1971) (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th
Cir. 1958)). Essentially, the habeas petitioner must ensure that in
state court “the nature or presentation of the claim must have been
likely to alert the court to the claim’s federal nature.” Id. This
may be accomplished by “(a) reliance on pertinent federal cases
employing constitutional analysis, (b) reliance on state cases
employing constitutional analysis in like fact situations,
(c) assertion of the claim in terms so particular as to call to
mind a specific right protected by the Constitution, and
(d) allegation of a pattern of facts that is well within the
mainstream of constitutional litigation.” Id. at 194. In addition
to fairly presenting the claim in constitutional terms, the habeas
petitioner must have pursued review of the claim by the highest
state court from which appellate review may be obtained.
O’Sullivan, 526 U.S. at 845-48.

Analysis

B.
Respondent asserts that Petitioner has failed to exhaust all
four of his claims. In his Appellate Division brief, Petitioner
argued that (1) the trial court erred in failing to instruct the
jurors that they could consider the charge of second degree
manslaughter; (2) the trial court erred in failing to issue a
justification (self-defense) charge; and (3) the sentence was harsh
and excessive. However, Respondent argues, Petitioner failed to

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raise any of these claims in constitutional terms. Furthermore,
Petitioner did not raise his prosecutorial misconduct claim on
direct appeal or in a collateral proceeding in state court.
Failure to Charge a Lesser Included Offense

1.

With regard to the failure to charge the lesser included
offense of second degree manslaughter, appellate counsel argued
simply that the trial court erroneously failed to submit a charge
on that offense to the jury. Appellate counsel only cited state
court cases that did not engage in any constitutional analysis but
instead relied on provisions of New York’s Criminal Procedure Law.
The Court agrees with Respondent that this claim was not fairly
presented for exhaustion purposes.

In the context of the habeas exhaustion requirement, a federal
court “need not require that a federal claim be presented to a
state court if it is clear that the state court would hold the
claim procedurally barred.” Harris v. Reed, 489 U.S. 255, 263 n. 9
(1989); see also Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991).
“In such a case, a petitioner no longer has ‘remedies available in
the courts of the State’ within the meaning of 28 U.S.C.
§ 2254(b).” Grey, 933 F.2d at 120.

As the “lesser included offense” claim concerns a ruling by
the trial court, it clearly is record-based and could have been
raised on direct appeal. For this reason, Petitioner is now barred
from raising it in a collateral motion to vacate the judgment in

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state court. See N.Y. CRIM. PROC. LAW § 440.10(2)(c) (mandating
that the trial court “must” deny any issue raised in a C.P.L.
§ 440.10 motion where the defendant unjustifiably failed to argue
such violation on direct appeal despite a sufficient record to do
so); Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (“New York
does not otherwise permit collateral attacks on a conviction when
the defendant unjustifiably failed to raise the issue on direct
appeal.”) (citing N.Y. CRIM. PROC. LAW § 440.10(2)(c)). Petitioner
cannot pursue a second direct appeal, for under New York State law,
a criminal defendant is only entitled to one appeal to the
Appellate Division and one request for leave to appeal to the Court
of Appeals. See N.Y. CT. RULE 500.20(a)(2) (providing that
application for leave to appeal to the New York Court of Appeals in
a criminal case pursuant to C.P.L. § 460.20 must include statement
that “no application for the same relief has been addressed to a
justice of the Appellate Division, as only one application is
available”); N.Y. CRIM. PROC. LAW § 450.10(1); see also N.Y. CT.
RULES 500.20(d).

As Petitioner has no further recourse in state court, this
unexhausted claim should be deemed exhausted. See, e.g., Reyes v.
Keane, 118 F.3d 136, 139 (2d Cir. 1997) (“Reyes’s claim should be
deemed exhausted because any attempt at exhaustion in the face of
this procedural default would be futile.”). The foregoing
procedural bar to presentment in state court, which causes the

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Court to deem the claim exhausted, also renders it procedurally
defaulted. Id. (“Although Petitioner’s claim of ineffective
assistance is deemed exhausted, we nonetheless find that, by
defaulting on that claim in state court, Reyes forfeits that claim
on federal habeas review, even though the claim is brought as cause
for another procedural default.”) (citing Gray v. Netherland, 518
U.S. 152, 162 (1996)).

To avoid such a procedural default, a habeas petitioner must
demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental
miscarriage of justice. Gray, 518 U.S. at 162 (citations omitted).
Petitioner has failed to address Respondent’s arguments concerning
the non-exhaustion defense. He has made no attempt to proffer any
explanation for his failure to fully pursue his state court
remedies. Finding no basis on the record before this Court to
excuse the procedural default, the unexhausted claim is dismissed
as procedurally barred.

2. Failure to Instruct Jury on Justification

With regard to the trial court’s failure to instruct the jury
on self-defense, appellate counsel argued that it was “reversible
error” and did not cite any constitutional provisions. However, he
did cite state law cases, e.g., People v. McManus, 67 N.Y.2d 541
(1986), that engaged in constitutional analysis in like factual

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situations. See McManus, 67 N.Y.2d at 543 (appellate argued that he
was denied due process of law and a fair trial by the trial court’s
refusal to instruct the jury that justification was a defense to
reckless murder). Furthermore, the legal standards for Petitioner’s
federal claim that the denial of the jury charge denied him due
process and his state law claim that the trial court erred in
declining to issue the charge were similar enough that the federal
claim was necessarily presented to the state court. See Jackson v.
Edwards, 404 F.3d 612, 621 (2d Cir. 2005) (“Jackson did not
explicitly have to tell the state court that he was presenting a
federal due process claim because, by raising his state law claim
[regarding the denial of a justification charge], he necessarily
gave the Appellate Division a fair ‘opportunity to pass upon and
correct alleged violations of [his] federal rights.’”) (quotation
omitted). Accordingly, the Court finds that Petitioner sufficiently
alerted the Appellate Division to the federal constitutional nature
of this claim for purposes of satisfying the exhaustion
requirement.
3.

Harsh and Excessive Sentence

With respect to his claim that his sentence was unduly harsh
and excessive, Petitioner’s appellate brief presented it in terms
of state law, invoking the power of the intermediate appellate
courts in New York to reduce sentences in the interest of justice
under C.P.L. § 470.15(6)(b). “However, requesting that a state

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court invoke its discretionary authority to reduce a sentence under
C.P.L. § 470.15(6)(b), without more, is not enough to alert the
court that the claim is of a federal constitutional dimension.”
Hernandez v. Conway, 485 F. Supp.2d 266, 277 (W.D.N.Y. 2007)
(citing King v. Cunningham, 442 F. Supp.2d 171, 181 (S.D.N.Y. 2006)
(holding that petitioner’s “excessive sentence” claim was
unexhausted because it was only presented to the state court on
appeal as a request for a reduction in the sentence in the interest
of justice under state statutory law, C.P.L. § 470.15(6)(b))
(citations omitted)). The Court agrees that Petitioner’s harsh and
excessive sentence claim was not fairly presented to the state
courts.

Indeed, the “harsh and excessive sentence” claim arguably
cannot be presented in federal constitutional terms. Federal courts
have consistently dismissed habeas claims premised on an assertion
that the trial court abused its discretion in sentencing. E.g.,
Fielding v. LeFevre, 548 F.2d 1102, 1109 (2d Cir.1977) (citing
Townsend v. Burke, 334 U.S. 736, 741 (1948)); see also Bellavia v.
Fogg, 613 F.2d 369, 373 (2d Cir. 1979). Petitioner’s term of
imprisonment and term of post-release supervision were within the
range permitted by statute and thus were not illegal. “No federal
constitutional issue is presented where, as here, the sentence is
within the range prescribed by state law.” White v. Keane, 969 F.2d
1381, 1382 (2d Cir. 1992) (per curiam) (citation omitted).

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Prosecutorial Misconduct

4.
As Respondent argues, Petitioner’s claim that the prosecutor
committed misconduct has never been presented to any state court.
Thus, it is unexhausted. As with the claim regarding the failure to
charge a lesser included offense, Petitioner is precluded from
returning to the state court to exhaust this record-based claim.
See N.Y. CRIM. PROC. LAW § 440.10(2)(c); N.Y. CT. RULES § 500.20(a)(2).
Because Petitioner no longer has any state remedies available, this
Court deems his unexhausted claim of prosecutorial misconduct
exhausted. See Gray v. Netherland, 518 U.S. at 161–62; see also
Aparicio, 269 F.3d at 90. Under such circumstances, the claim is
also considered procedurally defaulted. As Petitioner has not
submitted any evidence demonstrating cause or prejudice, or that a
fundamental miscarriage of justice would occur if this Court fails
to consider the claim, there is no basis to excuse the procedural
default. The prosecutorial claim accordingly is dismissed without
reaching the merits.
IV. Merits of Petitioner’s Exhausted Claim

Overview

A.
Petitioner’s sole exhausted claim, as discussed above, is his
contention that the trial court failed to instruct the jury on the
defense of justification. The Appellate Division held that
[t]he [trial] court . . . properly denied defendant’s
request for a jury charge on the justifiable use of
deadly physical force to prevent or terminate a burglary.
Viewing the evidence in the light most favorable to

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defendant, we conclude that there was no reasonable view
of the evidence that would permit a jury to conclude that
defendant reasonably believed that deadly physical force
was necessary to prevent or terminate a burglary.

People v. Stanford, 87 A.D.3d at 1368-69 (internal citations
omitted). The holding quoted above constitutes an adjudication on
the merits, and this Court may only issue habeas relief if the
Appellate Division unreasonably applied clearly established Supreme
Court precedent. See 28 U.S.C. § 2254(d)(1).

The Second Circuit has outlined a three-step analysis for
reviewing a habeas petitioner’s challenge to a jury instruction:
(1) whether the trial court’s instruction was erroneous under state
law; (2) whether the failure to give the proper instruction
resulted in a denial of due process; and (3) whether the erroneous
instruction constituted an unreasonable application of Supreme
Court law. Jackson v. Edwards, 404 F.3d at 621.

1.

Was the Trial Court’s Failure To Instruct Erroneous
Under State Law?

In determining whether a justification charge is warranted,
the trial court must evaluate the proof in the light most favorable
to the defendant. Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir.
1990); accord Jackson, 404 F.3d at 622. “[I]f any reasonable view
of the evidence would permit the fact-finder to decide that the
conduct of the accused was justified, an instruction on the defense
should be given.” People v. McManus, 67 N.Y.2d at 549 (citation
omitted). However, “[the trial] court is not required to adopt an

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artificial or irrational view of the evidence in deciding whether
a justification charge is warranted.” Blazic, 900 F.2d at 540
(citing People v. Butts, 72 N.Y.2d 746, 750 (1988)). “[D]ue process
does not require the giving of a jury instruction when such charge
is not supported by the evidence.” 900 F.2d at 541 (citing Hopper
v. Evans, 456 U.S. 605, 611 (1982)).

At trial, defense counsel argued that a justification charge
was warranted on the basis that Petitioner utilized deadly force to
prevent a burglary. See N.Y. PENAL LAW § 35.20(3). Section 35.20(3)
provides that

a person in possession or control of a dwelling who
reasonably believes that another person is committing or
attempting to commit a burglary of such dwelling, may use
deadly physical force upon such other person when he or
she reasonably believes such to be necessary to prevent
or terminate the commission or attempted commission of
such burglary.

N.Y. PENAL LAW § 35.20(3). It is undisputed that Petitioner was in
his apartment at the time of the stabbing. Thus, for the defense to
apply, there must have been evidence that reasonably could be
viewed as establishing the following elements: (1) Petitioner
reasonably believed that Thomas, the “other person” against whom he
used deadly physical force, was committing or attempting to commit
a burglary; and (2) Petitioner reasonably believed that deadly
force was necessary to stop Thomas’s in-progress burglary or
attempt to commit a burglary.

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The proof at trial, even when viewed in the light most
favorable to Petitioner, makes both of these conclusions
unreasonable. First, Thomas could not have been committing or
attempting to commit a burglary because she was Petitioner’s
invited guest, and burglary in any degree requires that the
perpetrator unlawfully have entered or remained behind in the
building. See N.Y. PENAL LAW § 140. Because Petitioner invited Thomas
back to his apartment, she necessarily “lawfully entered” his
dwelling. And, Thomas could not be said to have unlawfully remained
since there is no evidence that Petitioner requested her to leave
or otherwise revoked her license to be in the apartment.

The fact that Petitioner testified that he heard a knock on
the door does not alter the analysis. No evidence beyond
Petitioner’s speculation connected Thomas to the knock on the door,
and no evidence connected the knock to any burglary attempt.

Turning to the second element that must be proven under
Section 35.20(3), Petitioner must show that it was reasonable for
him to believe that deadly physical force was necessary to stop
Thomas. Even when viewed in the light most favorable to the
defense, the facts here do not permit such a conclusion to have
been reasonably made. During the incident, Thomas undisputably was
not armed, and Petitioner was holding his knife. As Petitioner
testified, Thomas “was holding [him] around [his] chest, kind of
like a bear hug”. Petitioner surmised that Thomas may have grabbed

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onto him because “she was scared, too.” Even accepting Petitioner’s
account at face value, Thomas was not engaging in any conduct that
made it necessary for Petitioner to respond with deadly physical
force. Cf. People v. Savage, 267 A.D.2d 968, 969 (4 Dep’t 1999)
(“Even assuming that the victim was committing a burglary by
attempting to assault defendant after being told to leave
defendant’s apartment, we conclude that there is no reasonable view
of the evidence that would permit the jury to find that defendant’s
use of deadly physical force was justified. The victim neither used
nor threatened the use of deadly physical force . . . .”).

th

In sum, no reasonable view of the evidence supported a
justification charge. Because the state court’s refusal to give the
requested instruction was clearly correct as a matter of state law,
the Court need not proceed to consider the remaining two prongs of
the Jackson v. Edwards inquiry (i.e., whether the failure to give
the instruction resulted in a denial of due process, and whether
that failure constituted an unreasonable application of Supreme
Court law). Petitioner’s contention that the trial court’s denial
of his request for a justification charge violated his rights to a
fair trial and to present a defense is without merit. See, e.g.,
Hubrecht v. Artus, 457 F. App’x 29, 31, 2012 WL 147888, at **2 (2d
Cir. Jan. 19, 2012) (unpublished opn.).

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V.

Conclusion
For the foregoing reasons, Petitioner’s request for a writ of
habeas corpus is denied; and the petition (Dkt #1) is dismissed
with prejudice. Because Petitioner has not made a “substantial
showing of the denial of a constitutional right” pursuant to 28
U.S.C. § 2253(c)(2), no certificate of appealability shall issue.

SO ORDERED.



S/Michael A. Telesca


MICHAEL A. TELESCA
United States District Judge

DATED:

September 19, 2013
Rochester, New York

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