Pennington v. Bennett , 372 F. App'x 144 ( 2010 )

01-2204-pr
Pennington v. Bennett
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 SUMMARY ORDER
4 R U L IN G S B Y SU M M A R Y O R D E R D O N O T H A V E P R E CE D E N T IA L E F FE C T . C ITATIO N TO A SU M M AR Y O R D ER FILE D O N O R
5 AFTE R J AN U ARY 1, 2007, IS PERM ITTED AN D IS GO VER N ED BY F ED ER AL R U LE O F A P PE LL AT E P R O C E D U R E 32.1 AN D TH IS
6 C O U RT ’ S L O CAL R U L E 32.1.1. W H E N C ITIN G A SU M M AR Y O R D ER IN A D O C U M E N T FILE D W ITH T H IS C O U RT , A PA R TY M U ST
7 C IT E E IT H E R T H E F E D E R A L A P P E N D IX O R A N E L E C TR O N IC D A T AB A SE ( W ITH TH E N O TATIO N “ SU M M A R Y O R D E R ”). A
8 P AR T Y C IT IN G A SU M M A R Y O R D E R M U ST SE R V E A C O P Y O F IT O N A N Y P AR T Y N O T R E P R E SE N T E D B Y CO U N SE L .
9 At a stated term of the United States Court of Appeals for the
10 Second Circuit, held at the Daniel Patrick Moynihan United States
11 Courthouse, 500 Pearl Street, in the City of New York, on the
12 16th day of April, two thousand ten.
13 PRESENT:
14 JOSEPH M. McLAUGHLIN,
15 ROBERT D. SACK,
16 Circuit Judges,
17 PAUL A. CROTTY,*
18 District Judge.
19 --------------------------------------
20 James E. Pennington,
21 Petitioner-Appellant,
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23 - v -
No. 01-2204-pr
24 Floyd Bennett,
25 Respondent-Appellee.
26 --------------------------------------
27 Appearing for Appellant: James E. Pennington, pro se,
28 Sonyea, NY.
29 Michael Y. Scudder, Jr. (Su Ji Lee,
30 on the brief), Court Appointed
31 Amicus Curiae, Chicago, IL.
*
The Honorable Paul A. Crotty, of the United States
District Court for the Southern District of New York, sitting by
designation.
1 Appearing for Respondent: J. Michael Marion (Michael J.
2 Hillery, of counsel), for Frank J.
3 Clark, District Attorney of Erie
4 County, Buffalo, NY.
5 Appeal from a judgment of the United States District Court
6 for the Western District of New York (Bauer, Magistrate Judge).
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
8 DECREED that the judgment of the district court be, and it hereby
9 is, AFFIRMED.
10 Petitioner-Appellant James E. Pennington appeals pro se from
11 a judgment of the United States District Court for the Western
12 District of New York denying his petition for a writ of habeas
13 corpus pursuant to 28 U.S.C. § 2254. We appointed pro bono
14 counsel as amicus curiae for Pennington to brief, inter alia,
15 whether Pennington's petition was not procedurally barred under
16 the fundamental miscarriage of justice exception. See Murray v.
17 Carrier, 477 U.S. 478 (1986).
18 Amicus counsel argues that Pennington's petition is not
19 procedurally barred under that exception because, in relation to
20 the shooting death of Octavio Duran, a jury impermissibly
21 convicted Pennington of mutually inconsistent offenses:
22 intentional murder, see N.Y. Penal Law § 125.25(1), and depraved
23 indifference murder, see id. § 125.25(2).* See People v.
24 Gallagher, 69 N.Y.2d 525, 529-30, 508 N.E.2d 909, 910 (1987)
25 ("[I]ntentional murder and depraved mind murder[] are
26 inconsistent counts as defined in CPL 300.30(5), because guilt of
27 one necessarily negates guilt of the other. A finding that
28 defendant committed intentional murder by killing his victim with
29 the conscious objective of causing his death precludes the
30 inconsistent finding that defendant at the same time committed
31 depraved mind murder by recklessly and thus unintentionally
*
In New York, a person is guilty of second-degree
intentional murder when, "[w]ith intent to cause the death of
another person, he causes the death of such person or of a third
person." N.Y. Penal Law § 125.25(1).
A person is guilty of second-degree depraved indifference
murder when, "[u]nder circumstances evincing a depraved
indifference to human life, he recklessly engages in conduct
which creates a grave risk of death to another person, and
thereby causes the death of another person." N.Y. Penal Law §
125.25(2).
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1 killing that same victim under circumstances evincing a depraved
2 indifference to human life.").
3 We review a district court's denial of a writ of habeas
4 corpus de novo. See Cotto v. Herbert, 331 F.3d 217, 229 (2d Cir.
5 2003). Where, as here, a habeas petitioner's claim is
6 procedurally defaulted, a "habeas petitioner may avoid such a
7 default . . . by showing cause for the default and prejudice, or
8 that failure to consider the claim will result in miscarriage of
9 justice, i.e., the petitioner is actually innocent." Sweet v.
10 Bennett, 353 F.3d 135, 141 (2d Cir. 2003); see also Murray v.
11 Carrier, 477 U.S. 478, 496 (1986). Only the latter exception --
12 fundamental miscarriage of justice -- is relevant here because
13 that is the question on which we granted Pennington's motion for
14 a certificate of appealability. The "fundamental miscarriage of
15 justice exception is 'extremely rare' and should be applied only
16 in 'the extraordinary cases.'" Sweet, 353 F.3d at 142.
17 "'[A]ctual innocence' means factual innocence rather than just
18 legal insufficiency," and so "the question depends on whether it
19 is more likely than not that no reasonable juror would have
20 concluded that [the petitioner] engaged in conduct that meets the
21 required elements of each of the [allegedly inconsistent]
22 charges." Id.23 We conclude that Pennington's petition is not saved by the
24 fundamental miscarriage of justice exception. Pennington shot
25 Duran three times in succession. Pennington testified that he
26 pulled out his gun while standing on the side of a street, that
27 Duran lunged toward him, and that the gun "went off" without
28 Pennington intending to fire. See Trial Tr. 1088, 1091-92.
29 Duran's wife testified that after Pennington fired the first
30 shot, Duran turned towards her and Pennington shot him two more
31 times. See id. at 725-26.
32 Despite some reservations about treating these three shots
33 as separate acts, we conclude that our decision in Sweet mandates
34 our holding that the fundamental miscarriage of justice exception
35 does not apply here. In Sweet, we confronted a situation where a
36 defendant was found guilty of both first degree manslaughter, an
37 offense requiring intent, and second degree murder, an offense
38 requiring reckless but not intentional conduct, and found that
39 where there was evidence of multiple blows and injuries "the jury
40 could have concluded that this evidence demonstrated a series of
41 intentionally physical injuries, culminating in one final blow
42 that demonstrated the reckless creation of a grave risk of
43 serious physical injury or death," and that the charged offenses
44 were therefore not mutually inconsistent. Sweet, 353 F.3d at45 142. Similarly a reasonable juror here could have concluded that
3
1 at least one of Pennington's three shots was fired recklessly
2 under circumstances evincing a depraved indifference to human
3 life and at least one was fired with intent to kill; for example,
4 a reasonable juror might have concluded that the first shot was
5 fired recklessly under circumstances evincing depraved
6 indifference, based on Pennington's testimony that the gun just
7 "went off," but that the second two shots were fired with intent
8 to kill, based on the evidence that Duran had turned away from
9 Pennington and was shot twice in the back, and that the gun did
10 not have a "hair trigger." See Trial Tr. at 608-11.
11 Accordingly, Pennington has failed to demonstrate the factual
12 innocence required for a claim of actual innocence, and his
13 habeas claims are procedurally barred.
14 For the foregoing reasons, the judgment of the district
15 court is hereby AFFIRMED.
16 FOR THE COURT:
17 Catherine O'Hagan Wolfe, Clerk of the Court
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