No.u APR 7 2011

101244 --

IN THE

JAMES CONWAY, Superintendent ofAttica Correctional Facility,

mV.m

Petitioner,

KEVIN LANGSTON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATESCOURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

April 7, 2011

CHARLES J. HYNES

District AttorneyKings County

LEONARD JOBLOVE*

VICTOR BARALL

Assistant District Attorneys

Kings County District Attorney’s Office350 Jay StreetBrooklyn, New York 11201-2908(718) 250-2511

* Counsel of Record for the Petitioner

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QUESTIONS PRESENTED

1. Whether the judgment of the Second Circuitshould be reversed, where the Second Circuit, inholding that the evidence of the respondent’s guiltof the New York Penal Law offense of assault inthe first degree was constitutionally insufficient,fundamentally misapplied the standard of Jacksonv. Virginia, 443 U.S. 307 (1979), by: (a) judgingthe sufficiency of the evidence by reference to thearguments made in the prosecutor’s summation,rather than judging the sufficiency of the evidencesolely in light of the evidence presented at trial;and(b) adopting its own, narrow construction ofthe statute defining the offense of which therespondent was convicted, instead of accepting theNew York state courts’ construction of thatstatute.

2. Whether the judgment of the Second Circuitshould be reversed, where the Second Circuit, inholding that the evidence of the respondent’s guiltof the New York Penal Law offense of assault inthe first degree was constitutionally insufficient,utterly failed to accord the decision of the stateappellate court, which held that the evidence wassufficient, the deference mandated by 28 U.S.C.§ 2254(d)(1), as demonstrated by the circumstancethat another federal court, considering exactly thesame evidence that was before the Second Circuit,concluded that that same evidence was sufficientto sustain the conviction of the respondent’sco-defendant at trial.

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PARTIES TO THE PROCEEDING

The petitioner in this Court is James Conway,the Superintendent of the Attica CorrectionalFacility, which is the state prison whereKevin Langston was most recently incarcerated.Mr. Conway is represented in this habeas corpusproceeding by Kings County District AttorneyCharles J. Hynes, by agreement with the AttorneyGeneral of the State of New York.

The respondent in this Court is Kevin Langston,who was convicted of assault and weapon posses-sion offenses in New York state court and whofiled the federal habeas corpus petition that is thesubject of this litigation.

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TABLE OF CONTENTSPAGE

QUESTIONS PRESENTED ..................

PARTIES TO THE PROCEEDING .......... ii

TABLE OF AUTHORITIES .................. v

PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OFAPPEALS FOR THE SECOND CIRCUIT... 1

Opinions Below ............................... 1

Jurisdiction ................................... 2

Constitutional and Statutory ProvisionsInvolved ................................... 2

Statement of the Case ........................3

Introduction .............................. 3

The Trial .................................. 7

The Jury Charge, the Verdict,and the Sentence .................... 13

The State Appeal ......................... 14

Co-Defendant Cherry’s FederalHabeas Corpus Petition .............15

iv

The Defendant’s FederalCourt Proceedings ...................

REASONS FOR GRANTING THE WRIT...

The Second Circuit Misappliedin Two Significant Respectsthe Legal Sufficiency Test ofJackson v. Virginia ..................

II. The Second Circuit Failed toAccord to the State AppellateCourt the Deference Mandatedby 28 U.S.C. § 2254(d)(1) ...........

CONCLUSION .................... - ............

APPENDIX

Opinion of the United States Courtof Appeals for the Second Circuit,dated January 7, 2011 ...................

Opinion of the United States DistrictCourt for the Eastern District ofNew York, dated July 20, 2010(corrected August 6, 2010) ..............

Opinion of the New York SupremeCourt, Appellate Division,Second Judicial Department,dated January 17, 2006 .................

Excerpt of Opinion of the United StatesDistrict Court for the Eastern Districtof New York, in Cherry v. Walsh,dated August 25, 2009 ...................

PAG E

17

21

24

30

34

la

25a

42a

45a

V

TABLE OF AUTHORITIESCases: PAGE

Bobby v. Van Hook, 130 S. Ct. 13 (2009) ...33

Bradshaw v. Richey, 546 U.S. 74 (2005) ....26

Butler v. McKellar, 494 U.S. 407 (1990) .... 32

Cherry v. Walsh, No. 09-CV-1452 (JG),2009 U.S. Dist. LEXIS 75373, 2009 WL2611225 (E.D.N.Y. Aug. 25, 2009) ......15

Felkner v. Jackson, No. 10-797(U.S. Mar. 21, 2011) .....................31, 33

Foxworth u. St. Amand, 570 F.3d 414(1st Cir. 2009), cert. denied,130 S. Ct. 1710 (2010) ...................23

Harrington v. Richter,131 S. Ct. 770 (2011) ....................23, 31

Hebert v. Louisiana,272 U.S. 312 (1926) ......................26, 29

Jackson v. Virginia,443 U.S. 307 (1979) .....................passim

Johnson v. Fankell, 520 U.S. 911 (1997) ... 26

Langston v. Smith, 630 F.3d 310(2d Cir. 2011) .............................. 1, 20

Langston v. Smith, No. 07-CV-2630 (ERK),2010 U.S. Dist. LEXIS 81191, 2010 WL3119284 (E.D.N.Y. July 20, 2010) .......1, 17

vi

PAGE

Matteo v. Superintendent, SCi Albion,171 F.3d 877 (3d Cir.), cert. denied,528 U.S. 824 (1999) ...................... 32

McDaniel v. Brown,130 S. Ct. 665 (2010) ....................22

O’Brien v. Dubois, 145 F.3d 16(1st Cir. 1998) ............................ 32

People v. Cherry, 46 A.D.3d 834,848 N.Y.S.2d 283 (App. Divo 2007),leave to appeal denied, 10 N.Y.3d 839,859 N.YoS.2d 398 (2008) .................15

People v. Hernandez, 82 N.Y.2d 309,604 N.Y.S.2d 524 (1993) ................. 27

People v. Joyner, 26 N.Y.2d 106,308 N.Y.S.2d 840 (1970) .................26-27

People v. Langston, 6 N.Y.3d 849,816 N.Y.S.2d 755 (2006) ................. 15

People v. Langston, 25 A.D.3d 623,806 N.Y.S.2d 886 (App. Div. 2006)... 1, 14-15

People v. Lewis, 111 Misc. 2d 682,444 NoYoS.2d 1003 (Sup. Ct. 1981) .....26

People v. Wood, 8 N.Y.2d 48,201 N.Y.S.2d 328 (1960) .................

Renico v. Lett, 130 S. Ct. 1855 (2010) .......

27

31

Swarthout v. Cooke,131 S. Ct. 859 (2011) ....................33

vii

PAGE

United States v. Arboleda, 20 F.3d 58(2d Cir. 1994) ............................. 25

White v. Steele, 602 F.3d 707(6th Cir. 2009), cert. denied,131 S. Ct. 130 (2010) ....................22, 23

Wilson v. Corcoran, 131 S. Ct. 13 (2010) ...33

Wright v. West,505 U.S. 277 (1992) .............21, 22, 23, 29

Yarborough v. Alvarado,541 U.S. 652 (2004) ......................23

United States Constitution:

Fourteenth Amendment ..................... 2

United States Statutes:

28 U.S.C. § 1254 .............................. 2

28 U.S.C. § 2254 .............................passim

New York Statutes:

N.Y. Penal Law § 120.10 .....................1, 3, 4

N.Y. Penal Law § 125.25 .....................26

N.Y. Penal Law former § 265.03 ............4

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PETITION FOR A WRIT OF CERTIORARI TOTHE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

James Conway, Superintendent of AtticaCorrectional Facility in New York ("the State"),requests that this Court issue a writ of certiorarito review the judgment of the United States Courtof Appeals for the Second Circuit that affirmed ajudgment of the United States District Court forthe Eastern District of New York (Korman, J.).The district court had granted, in part, KevinLangston’s petition for a writ of habeas corpus,holding that his conviction of assault in the firstdegree (N.Y. Penal Law § 120.1014]) was not sup-ported by legally sufficient evidence, and orderingthat he be released from custody on thatconviction.

Opinions Below

The citation of the opinion of the United StatesCourt of Appeals for the Second Circuit isLangston v. Smith, 630 F.3d 310 (2d Cir. 2011).The opinion of the United States District Court forthe Eastern District of New York, Langston v.Smith, No. 07-CV-2630 (ERK) (E.D.N.Y. July 20,2010), is not officially reported, but is available onLEXIS at 2010 U.S. Dist. LEXIS 81191 and onWestlaw at 2010 WL 3119284. The citation of theopinion of the Supreme Court of the State ofNew York, Appellate Division, Second JudicialDepartment, is People vo Langston, 25 A.D.3d 623,806 N.Y.S.2d 886 (App. Div. 2006).

Each of the above decisions is reproduced in theAppendix to this petition.

Jurisdiction

The judgment of the United States Court ofAppeals for the Second Circuit was entered onJanuary 7, 2011¯ This petition for certiorari wasfiled within ninety days of January 7, 2011. ThisCourt’s jurisdiction is invoked under 28 U.S.C.§ 1254(1).

Constitutional and StatutoryProvisions Involved

United States Constitution, FourteenthAmendment:

¯ . . nor shall any State deprive any person oflife, liberty, or property, without due processof law; ....

28 United States Code § 2254:

State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, acircuit judge, or a district court shall enter-tain an application for a writ of habeas corpusin behalf of a person in custody pursuant tothe judgment of a State court only on theground that he is in custody in violation of theConstitution or laws or treaties of the UnitedStates.

(d) An application for a writ of habeascorpus on behalf of a person in custody pur-suant to the judgment of a State court shallnot be granted with respect to any claim thatwas adjudicated on the merits in State court

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proceedings unless the adjudication of theclaim--

(1) resulted in a decision that was contraryto, or involved an unreasonable applicationof, clearly established Federal law, as deter-mined by the Supreme Court of the UnitedStates ....

New York Penal Law § 120.10:

Assault in the first degree.

A person is guilty of assault in the firstdegree when:

4. In the course of and in furtherance of thecommission or attempted commission of afelony or of immediate flight therefrom, he, oranother participant if there be any, causesserious physical injury to a person other thanone of the participants.

STATEMENT OF THE CASE

Introduction

This case arose out of an investigation in whicha New York City police detective, posing as acivilian gun purchaser, was attempting to pur-chase handguns from some men believed to beinvolved in the illegal sale of those weapons. Thedetective arranged to meet one Edward Moultrieat a Brooklyn restaurant, where, in exchange for$3,000, Moultrie was to provide the detective withfour handguns. When the detective, accompaniedby another undercover officer, arrived at therestaurant, Moultrie was there with the

respondent, Kevin Langston (~’the defendant").From the restaurant, the four men went to anapartment building, and ultimately, to the sixth-floor hallway of that building.

The defendant and Moultrie, and eventually, athird confederate, Gamel Cherry, had a series ofconversations with the detectives, in which thepurported sellers demanded the money prior todelivering the weapons, and the detectivesdemanded to see the weapons prior to handingover any money. The conversations becameincreasingly heated as each side maintained itsposition. Ultimately, Cherry said that thedetectives would get what they had come for, leftthe hallway, and entered a stairwell. Cherry andtwo other men then re-entered the hallway andopened fire on the detectives, one of whom sus-tained a gunshot wound that caused a seriousinjury to his hand.

The defendant was tried before a Brooklyn juryand convicted of two crimes: assault in the firstdegree (N.Y. Penal Law §120.1014]) (felonyassault) and criminal possession of a weapon inthe second degree (N.Y. Penal Law former§ 265.03[2]). A person is guilty of the former crimewhen, ~[i]n the course of and in furtherance of thecommission or attempted commission of a felonyor of immediate flight therefrom, he, or anotherparticipant if there be any, causes seriousphysical injury to a person other than one of theparticipants." In this ease, the jury was chargedthat, in order to find the defendant guilty of theassault, the jury had to find beyond a reasonabledoubt that the assault was committed in thecourse of and in furtherance of the crime of

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weapon possession. On the defendant’s stateappeal, the conviction of both counts was affirmedon the merits.1

Thereafter, the defendant filed a petition for awrit of habeas corpus in federal court. The districtcourt granted the petition in part, holding that,although the evidence would have been legallysufficient to establish that the assault wascommitted in furtherance of an attempted robberyof the detectives, the evidence was not legallysufficient to establish that the assault was com-mitted in furtherance of the crime of weaponpossession.

The State appealed, and the Second Circuit, likethe district court, had "no difficulty" concludingthat the evidence would have supported a convic-tion for assault committed in furtherance of anattempted robbery. However, the Second Circuitaffirmed the judgment of the district court, hold-ing that the state appellate court, in determiningthat the evidence of the defendant’s guilt of theassault was legally sufficient, had unreasonablyapplied this Court’s decision in Jackson v.Virginia, 443 U.S. 307 (1979). In reaching thatconclusion, the Second Circuit itself misappliedJackson in two significant respects. First, insteadof determining whether the evidence presented atthe trial and the reasonable inferences to bedrawn therefrom established all of the elements ofthe crime, as those elements were charged tothe jury, the Second Circuit focused on theprosecutor’s summation, and seemed to concludethat, because the summation did not furnish the

~ The defendant’s weapon possession conviction is notat issue in this petition.

jury with sufficient guidance as to how the shoot-ing that caused the injury to the officer was com-mitted in furtherance of the underlying felony ofweapon possession, the evidence was legally insuf-ficient. Second, instead of accepting the New Yorkstate courts’ construction of the "in furtherance of’element of the New York felony assault statute,the Second Circuit adopted its own, narrow con-struction of that statute for situations in whichthe underlying felony is weapon possession, andheld that, under that construction, the evidencewas insufficient to prove that the shooting was infurtherance of the weapon possession.

In addition, the Second Circuit, while acknowl-edging that this case was governed by the "unrea-sonable application" standard of 28 U.S.C.§ 2254(d)(1), simply failed to apply that standard.Indeed, as the State noted in the Second Circuit,the federal habeas petition of Gamel Cherry--whohad been tried together with the defendant andwho also had been convicted of felony assault--had been denied, and the district court judge whohad ruled on Cherry’s petition (Judge JohnGleeson) had rejected Cherry’s claim regardingthe sufficiency of the evidence and had concludedthat the "in furtherance of’ element was satisfied.

In holding that the state appellate court unrea-sonably applied Jackson, the Second Circuitinexplicably dismissed the reasonable andcommonsense inference that, while the possessionand the firing of the gun furthered the attemptedcommission of a robbery, the firing of the gun alsofurthered the continued possession of the gun (byminimizing the risk that the intended victims ofthe robbery would disarm the gunman), and thecontinued possession of the gun in turn furthered

the ultimate goal of committing a robbery. Byrefusing to acknowledge that inference as one thata rational jury could have drawn--or even as onethat a state court could reasonably have concludedthat a rational jury could have drawn--the SecondCircuit utterly disregarded the deferential stan-dards, under Jackson and 28 U.S.C. § 2254, thatapply to review of a state court’s determinationthat the evidence was sufficient to support a crim-inal conviction.

Therefore, the petition for certiorari should begranted and the judgment below should bereversed summarily.

The Trial

At trial, the State presented evidence that onMay 8, 2002, a confidential informant introducedan undercover police officer, Detective JohnRobert, to Edward Moultrie. After several con-versations, the two men agreed to meet onMay 22, 2002, in front of Junior’s Restaurant inBrooklyn. There, Detective Robert would purchasefour nine-millimeter firearms from Moultrie for$3,000 (Tr. 546-48, 681-86, 732; App. 4a, 26a,46a).’~

On May 22, 2002, at approximately 9:00 p.m.,Detective Robert, accompanied by another under-cover officer, Detective Arthur Marquez, drove toJunior’s. Detective Robert had $3,000 on his per-son. Both detectives were armed (Tr. 542-43, 547-48, 552-53, 685-88, 724; App. 4a, 26a, 46a).

~ Numbers in parentheses preceded by "Tr." and "App."refer, respectively, to pages of the trial transcript and pagesof the Appendix.

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Upon arriving at the restaurant, DetectiveRobert saw Moultrie standing with the defendant(Tr. 547-49, 686-87: App. 4a). When Moultrieapproached the detectives’ vehicle, DetectiveRobert asked where the guns were. Moultrieresponded that they were nearby (Tr. 548, 687-88;App. 47a).

Moultrie then brought the defendant over to thevehicle and introduced him (Tr. 549, 688, 733;App. 4a, 26a). Detective Robert again asked wherethe guns were, and the defendant replied that theguns had to be retrieved from another location.The defendant and Moultrie got into the vehicle,and the defendant then directed Detective Robertto 301 Sutter Avenue, an apartment building inBrooklyn (Tr. 550-52, 688-92, 733; App. 4a, 26a,47a).

Once Detective Robert had parked his car, heagain asked about the guns and the defendantstated that he needed the money first. DetectiveRobert stated that he would not give thedefendant any money until the guns were broughtto him. The defendant replied, "That’s not how wedo things here." When Detective Robert repeatedthat he would not give the defendant any moneywithout getting the guns in exchange, thedefendant left the car, walked towards 301 SutterAvenue, and entered the building. The detectivesand Moultrie waited outside (Tr. 552-55, 691-92,708-10, 734-36; App. 4a, 26a-27a, 47a).

After about five minutes, the defendant cameout of the building. When Detective Robert askedthe defendant about the guns, the defendant,yelling, responded, "They don’t want to do it likethat. They need the money." Detective Robert told

9

the defendant that he would not give thedefendant any money without receiving the guns.Detective Robert and the defendant continued toargue, with the defendant continuing to demandthe money and the detective telling the defendantto "[g]o get the f***ing guns" (Tr. 556-57, 709-10,736; App. 27a, 48a).

The defendant re-entered the building. When hecame back out, he and Detective Robert agreed tomake the exchange in the lobby. However, thedefendant ultimately would not agree to make theexchange in the lobby, which was full of people,and he suggested going up in the elevator (Tr.558-61, 710-11, 736-37; App. 5a, 27a, 48a).

In the elevator, the defendant told DetectiveRobert to push the sixth-floor button. The elevatorstopped on the fifth floor, the doors opened, and aman wearing a leather jacket, Skyler Brownlee,looked in. Brownlee and the defendant greetedeach other. Brownlee did not get on the elevator(Tr. 560-62, 597, 606, 711-13, 738-39; App. 5a,27a).

When the elevator arrived at the sixth floor, thedefendant, Moultrie, and the two detectives gotout. Detective Robert again asked the defendantfor the guns and the defendant again demandedthe money. When the detective refused to give thedefendant any money without receiving the gunsin return, the defendant walked to the stairwell,opened the door, and entered the stairwell (Tr.562-64, 568, 714-15, 738-40; App. 27a, 48a). A fewminutes later, the defendant re-entered thehallway, and when Detective Robert asked aboutthe guns, the defendant responded, "They don’twant to do it like that." The detective reiterated

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that he would not give the defendant any moneyuntil the defendant brought the guns (Tr. 564-66,714-16, 740-41; App. 27a-28a, 48a).

About a minute later, Gamel Cherry appearedfrom the same stairwell and approached DetectiveRobert. Cherry told Detective Robert, "I don’t dobusiness like that. Just give me the money upfront and I’ll get the guns" (Tr. 565-66, 600,603-04, 716-17, 741-42; App. 5a, 28a, 48a). Thedetective and Cherry argued for a few minutes.Cherry then left the hallway and re-entered thestairwell. The defendant and Detective Robertresumed their argument, with the defendantagain demanding money and Detective Robertrefusing to give it to him. Moultrie then warnedthe detective, "I ain’t f***ing with you no more."Detective Robert replied, "I’m here to do a deal;you haven’t even sold me one gun yet. This isbull****" (Tr. 567-68, 718-19; App. 28a).

A few minutes later, Cherry re-entered thehallway, told Detective Robert that he was themain negotiator, and, standing close to thedetective, again demanded money for the hand-guns. The detective refused and stated that hewanted the guns and would not give any moneyuntil he got them. After further discussion, Cherryasked the detective for identification (Tr. 569-70,604, 719-20, 741-42; App. 5a, 28a, 48a).

Detective Robert did not show Cherry any iden-tification, but Detective Marquez volunteered todo so and showed Cherry an identification card.After studying Detective Marquez’s identification,Cherry said, "Okay, we’re going to do this, you’regoing to get what you came here for." Cherry thenleft the hallway once again. Detective Robert

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resumed arguing with the defendant andMoultrie, and the discussion became heated (Tr.570-74, 604, 720, 742; App. 5a, 28a, 48a).

About five minutes later, Cherry returned to thehallway. He held the stairwell door open with hisleft hand. In his right hand, Cherry was holding ahandgun, and Detective Marquez thought that thegun sale finally was "going down" (Tr. 572-74, 605,720-22, 744; App. 6a, 28a, 48a). As Cherry heldthe stairwell door open, two other men, RalphWyman and Skyler Brownlee, entered the hall-way. Both Wyman and Brownlee were also carry-ing guns (Tr. 574-75, 605-06, 722-23, 744; App.28a, 48a).

Cherry, Wyman, and Brownlee raised theirguns, aimed them at the detectives, and fired.Detective Marquez was struck in the hand by thegunfire. Detective Marquez looked at his hand tomake sure he still had all his fingers. DetectivesRobert and Marquez returned fire (Tr. 574-76,605-06, 610-11, 723-25; App. 6a, 28a, 48-49a).

When the shooting stopped, Detectives Robertand Marquez ran down the stairs. An ambulancetook Detective Marquez to a hospital, where heunderwent emergency surgery for a gunshotwound to his left wrist and hand (Tr. 577-83,702-05, 725-26; App. 6a, 28a, 49a).

A few minutes after Detective Marquez wastaken to the hospital, other police officers receiveda radio transmission regarding a wounded man ata specified location on the street. Upon arrivingthere, the officers learned that the wounded manhad walked in the direction of a subway stationlocated several blocks away. The officers went to

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that station, where they found the defendant, whowas bleeding from his left arm, out of breath, andsweating (Tr. 663-67: App. 28a). The defendantsaid that he had been robbed (Tr. 669-71;App. 28a).

That same dav, on the sixth floor of 301 SutterAvenue, a detective recovered ballistics evidence,including one .22 caliber discharged shell, one .22caliber cartridge, and one nine-millimeter semi-automatic handgun containing a magazine withnine bullets (Tr. 771-74, 778-79, 785-89, 796-97,863: App. 6a, 29a).

Police investigation revealed that at the time ofthe shooting of Detective Marquez, the defendant,Gamel Cherry, Ralph Wyman, and SkylerBrownlee had all resided at 301 Sutter Avenue.Edward Moultrie was then living in Manhattan,but had previously lived at 301 Sutter Avenue (Tr.881).

As of the time of trial, more than a year afterthe shooting, Detective Marquez’s left hand hadonly one-quarter of the strength of his right hand,and he had to retire from the police department.He was not expected to ever regain the full use ofhis hand or wrist (Tr. 580-84, 704-06; App. 6a,49a).

The defendant, testifying on his own behalf,admitted that he had participated with Moultrieand Cherry in arranging a sale of guns on May 22,2002, and admitted that he had lied when he toldthe police that he had been robbed; but he claimedthat he did not know Wyman or Brownlee prior tothe incident, that he did not intend to rob thedetectives, and that he had no prior knowledge

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that the shooting was going to happen (Tr. 964-1001; App. 4a-6a).

The Jury Charge, the Verdict, andthe Sentence

The court submitted five counts to the jury:first-degree assault (felony assault); one counteach of second-degree and third-degree weaponpossession, relating to the .22 caliber handgunfired at 301 Sutter Avenue; and one count each ofsecond-degree and third-degree weapon posses-sion, relating to the nine-millimeter handgunrecovered there (Tr. 1123-32; App. 7a). The courtcharged the jury that the defendant was alleged tohave acted in concert with others in the commis-sion of these crimes, and that, for an accused to befound guilty for acting in concert, he must havehad the mental culpability required for thecrime at issue and have solicited, requested, com-manded, importuned, or intentionally aidedanother person in the commission of the crime(Tr. 1120-22).

Concerning the felony assault count, the courtinstructed the jury that the State was required toprove beyond a reasonable doubt that thedefendant or another participant in the crimecaused serious physical injury to Arthur Marquezand that the defendant or another participantcaused such injury "while in the course of and infurtherance oi" the commission of criminalpossession of a weapon (Tr. 1124-27; App. 7a,11a-]2a).

On June 9, 2003, the jury found the defendantguilty of assault in the first degree and criminalpossession of a weapon in the second degree for

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the possession of the .22 caliber pistol (Tr. 1154).On July 15, 2003, the defendant was sentenced toconcurrent prison terms of twenty-five years onthe assault count and fifteen years on the weaponpossession count (App. 7a).:~

The State Appeal

On appeal from his judgment of conviction tothe Supreme Court of the State of New York,Appellate Division. Second Judicial Department,the defendant asserted, among other claims, thatthe evidence was legally insufficient to sustain hisfirst-degree assault conviction because, according

to the defendant, the assault had not been com-mitted "in furtherance of’ the possession of theweapon that he was convicted of possessing. OnJanuary 17, 2006, the Appellate Division affirmedthe defendant’s conviction, holding that the Statehad "established by legally sufficient evidencethat the defendant was guilty of assault in thefirst degree" (App. 43); People v. Langston,

:~ The decision of the Second Circuit states that thesentence on the weapon possession count was five years(App. 7a), which is the sentence indicated in the transcriptof the sentencing proceeding. Following the judgment of theSecond Circuit, the State, in light of evidence that the tran-script was incorrect and that the actual prison sentenceimposed on the weapon possession count was fifteen years,moved to settle the record. On March 29, 2011, following anevidentiary hearing before the judge who had sentenced thedefendant, the Supreme Court, Kings County, determinedthat the sentence that had actually been imposed was fifteenyears. The defendant, who had been released following thejudgment of the Second Circuit, because he had alreadyserved more than five years in prison (App. 8a), has sincebeen returned to custody pursuant to the sentence of fifteenyears on his weapon possession conviction.

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25 A.D.3d 623, 623-24, 806 N.Y.S.2d 886, 886-87(App. Div. 2006). On April 27, 2006, thedefendant’s application for leave to appeal to theNew York Court of Appeals was denied. People v.Langston, 6 N.Y.3d 849, 816 N.Y.S.2d 755 (2006)(Rosenblatt, J.).

Co-Defendant Cherry’s FederalHabeas Corpus Petition

Gamel Cherry, who was tried jointly with thedefendant, was convicted of first-degree assault bya separate jury. Like the defendant, Cherryclaimed on his state appeal that the evidence waslegally insufficient to prove that the assault was"in furtherance of" the underlying felony ofweapon possession. The Appellate Division heldthat Cherry’s claim (his "remaining contention")was "unpreserved for appellate review and, in anyevent, without merit." People v. Cherry, 46 A.D.3d834, 848 N.Y.S.2d 283,284 (App. Div. 2007), leaveto appeal denied, 10 N.Y.3d 839, 859 N.Y.S.2d 398(2008) (Ciparick, J.).

Thereafter, Cherry filed in federal court a peti-tion for a writ of habeas corpus, in which he againraised the legal sufficiency claim. On August 25,2009, United States District Judge John Gleesondenied the petition (App. 45a-57a). Cherry v.Walsh, No. 09-CV-1452 (JG), 2009 UoS. Dist.LEXIS 75373, 2009 WL 2611225 (E.D.N.Y.Aug. 25, 2009). Judge Gleeson held that Cherry’sclaim was procedurally barred from habeas review(App. 49a-53a). Judge Gleeson also addressed theclaim on the merits and held that the claim failedeven under a de novo standard of review(App. 53a-56a & n.6).

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~ludge Gleeson explained:

As an initial matter, it is worth pointing outthat the evidence would have established thatthe assault took place in furtherance of a rob-bery. But Cherry was not charged withrobbery, and the underlying felonies the pros-ecution relied on were criminal possession ofa weapon in the second and third degrees ....

Cherry . . . contends that there was no evi-dence that any assault was in furtherance ofhis criminal possession of a weapon or of hisflight from committing the offense. He notesthat, if guilty, he was committing the offensebefore any assault occurred, that the assaultwas unprovoked, and that the shooters leftwith the same guns they had possessed beforethe shooting began.

At first glance, it may seem artificial todescribe the assault as "in furtherance of’ thegroup’s weapons possession. It is more naturalto say that the act was in furtherance of theirmain aim, which was to rob Robert andMarquez of the money that, as gun buyers, theundercover detectives were assumed to be car-rying. Nevertheless, it is plain that there wassufficient evidence to find the requisite nexusbetween the underlying felony and the seriousinjury inflicted on Marquez. The evidence attrial established that Cherry, Brownlee andWyman stepped into the sixth floor hallwaycarrying firearms with the intention to openfire on the undercover detectives. In so doing,Cherry and his accomplices were committingthe crimes of criminal possession of a weapon

17

in the second and third degrees. In openingfire on the detectives, Cherry and his accom-plices, while also furthering their primary aimof committing a robbery, simultaneouslysought to further their criminal possession ofthe weapons. The assault was intended to pre-vent the detectives--who might have been andin fact were armed--from taking possession ofthe weapons during the robbery.

(App. 54a-56a).4

The Defendant’s Federal Court Proceedings

In 2007, the defendant filed in federal court apetition for a writ of habeas corpus, asserting thesame legal sufficiency claims that he had raisedon his state appeal. By decision and order datedJuly 20, 2010, United States District JudgeEdward R. Korman granted the petition as to theassault conviction (App. 25a-41a). Langston v.Smith, No. 07-CV-2630 (ERK), 2010 U.S. Dist.LEXIS 81191, 2010 WL 3119284 (E.D.N.Y.July 20, 2010). Judge Korman held that the evi-dence was legally insufficient to make out the "infurtherance oi~’ element of first-degree assault(App. 34a-40a). Judge Korman noted in his deci-sion that Judge Gleeson, whom he characterizedas a "brilliant and thoughtful judge," had reachedthe opposite conclusion on the same evidence, butthat he, Judge Korman, was "unable to join"Judge Gleeson’s interpretation of the evidence(App. 40a). Judge Korman did not state in hisdecision whether, in adjudicating the legal suffi-ciency claim, he had applied the deferential stan-

4 On January 6, 2010, the Second Circuit deniedCherry’s motion for a certificate of appealability.

18

dard of review of 28 U.S.C. § 2254(d)(1) or hadreviewed the claim de novo.~

The State appealed from the judgment of thedistrict court to the United States Court ofAppeals for the Second Circuit. In its brief to theSecond Circuit, the State expanded on the line ofreasoning set forth in Judge Gleeson’s opinion asto how the assault was in furtherance of theweapon possession. The State argued, in part, thata rational jury could have reasoned as follows:

1. Given the insistence of the defendant and hisaccomplices that Detective Robert hand over the$3,000 before even getting a glimpse of theweapons, and given the decision of the defendantand Moultrie to bring the purported buyers totheir "home turf’ (301 Sutter Avenue), it could beinferred that the defendant and his accomplicesdid not actually want to sell the detectives anyweapons. It could be inferred that, instead, thedefendant and his accomplices simply wanted toobtain the detectives’ $3,000.

2. The negotiations on May 22, 2002 betweenthe purported sellers and the purported pur-chasers were contentious from the first andbecame increasingly antagonistic. Just as thedefendant and his accomplices continually insistedthat Detective Robert had to give them the moneybefore they would show him the weapons, thedetective continually insisted on seeing the

~ Upon the application of the defendant, the districtcourt issued a corrected memorandum and order onAugust 6, 2010 and a corrected judgment on August 9, 2010.The correction is not relevant to the issue presented in thispetition for certiorari. The Appendix to this petition containsthe corrected memorandum and order.

19

weapons before giving over the money. The detec-tive was every bit as assertive in his demands aswere the purported sellers, and he was palpablyunafraid to curse and insult the purported sellers.Given Detective Robert’s assertiveness, and given,too, the type of merchandise involved in the trans-action between the parties, it would have beenperfectly reasonable for the defendant and hisaccomplices to have feared that the purportedbuyers were themselves armed (see App. 56a[decision of Judge Gleeson]).

3. Once the defendant and his accomplices real-ized that their attempt to steal the purportedbuyers’ money through trickery or persuasion wasnot going to succeed, the defendant and his accom-plices must also have realized that, if they were toachieve their objective of obtaining the detectives’money, they would need either to threaten the useof force or actually to use force. In either event,they would need to retain possession of theirweapons, because otherwise, they would not beable to overcome the purported buyers’ resistanceto surrendering their money. However, thedefendant and his accomplices could also haverealized that if, as they feared, the buyers werearmed, it would not be sufficient merely to pointtheir weapons at the buyers, because the buyersmight open fire on the defendant and his accom-plices and take their weapons. Therefore, thedefendant and his accomplices could have con-cluded that in order for them to retain theirweapons and to thereby maximize their likelihoodof completing the robbery, it was necessary forthem to open fire on the detectives.

20

Accordingly, the State argued, the assault was"in furtherance of’ the weapon possession, in thatthe assault enhanced the ability of the defendantand his accomplices to retain their weapons forthe ultimate purpose of effectuating a robbery.The State also argued that it was entitled tothe deferential standard of review of 28 U.S.Co§ 2254(d)(1).

On January 7, 2011, the Second Circuit affirmedthe judgment of the district court, concluding thatthe state appellate court, in holding that the evi-dence was legally sufficient to prove the "in fur-therance of’ element of the felony assault statute,had unreasonably applied Jackson v. Virginia,443 U.S. 307 (1979) (App. 2a, 22a-23a)o Langstonv. Smith, 630 Fo3d 310 (2d Cir. 2011). The SecondCircuit based that conclusion in large part on theprosecutor’s summation (App. 14a-16a), which theSecond Circuit viewed as "confused" (App. 16a),and which, that court apparently believed, neededto set forth a legally sufficient theory of the casein order for the evidence to be deemed legallysufficient. Additionally, the Second Circuit, appar-ently unsatisfied with the state courts’ construc-tion of the felony assault statute, fashioned itsown, narrow construction of that statute and con-cluded that the evidence was lacking under thatconstruction (App. 17a-18a). Finally, the SecondCircuit, although purporting to follow the man-date of 28 U.S.C. § 2254(d)(1), simply dismissedJudge Gleeson’s conclusion that the evidence waslegally sufficient as "unpersuasive" (App. 8a n.5).

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REASONS FOR GRANTING THE WRIT

The petition for a writ of certiorari should begranted because the Second Circuit fundamentallymisapplied the sufficiency-of-the-evidence test ofJackson v. Virginia, 443 U.S. 307 (1979), andutterly failed to accord the decision of the stateappellate court the deference to merits adjudica-tions mandated by 28 U.S.C. §2254(d)(1). Thiscase presents this Court with the opportunity tocaution the lower federal courts that they mustnot fashion their own tests of legal sufficiency andthat they must not disregard the deferential start-dard of review of 28 U.S.C. § 2254(d).

In Jackson, this Court announced the standardfor appellate review of the claim that the evidenceof a defendant’s guilt was legally insufficient tosustain his or her conviction. The standard is, ofcourse, a highly deferential one: the reviewingcourt must ask itself not "whether it believes thatthe evidence at the trial established guilt beyonda reasonable doubt," but "whether, after viewingthe evidence in the light most favorable to theprosecution, any rational trier of fact could havefound the essential elements of the crime beyonda reasonable doubt." Id. at 319 (emphasis inoriginal; citations and internal quotation marksomitted). Additionally, the reviewing court mustconsider all of the evidence in the light mostfavorable to the prosecution, and must consider allof the possible inferences that may be drawn fromthe evidence in the light most favorable to theprosecution. Id.; see also Wright v. West, 505 U.S.277,296-97 (1992) (plurality opinion). Moreover,because the reviewing court must sustain the con-viction if a rational trier of fact could have found

’2 ’2

the essential elements of the crime beyond a rea-sonable doubt, the reviewing court need not con-cern itself with "how rationally the verdict wasactually reached": that is, the reasoning process ofthe actual factfinder is irrelevant to the questionof whether the evidence was legally sufficient(Jackson, 443 U.S. at 319 no13). Finally, because"Is]tare judges are more familiar with the ele-merits of state offenses than are federal judgesand should be better able to evaluate sufficiencyclaims" (Wright, 505 U.S. at 290 [quoting Jackson,443 U.S. at 336 n.9 (Stevens, J., concurring in thejudgment)]), a federal habeas court should be par-ticularly reluctant to vacate a state conviction onlegal sufficiency grounds where the stateappellate court’s decision upholding the convictionexplicitly or implicitly rests on that court’s con-struction of the statute that defines the crime ofwhich the defendant was convicted.

Where a federal habeas court is reviewing thesufficiency of the evidence to support a state con-viction, the determination of the state appellatecourt is "accord[ed] a double layer of deference"(White v. Steele, 602 F.3d 707, 710 [6th Cir. 2009],cert. denied, 131 S. Ct. 130 [2010]): the layer ofdeference governing legal sufficiency claims gen-erally, plus the layer of deference mandated by 28U.S.C. § 2254(d)(1), which requires that a statecourt’s adjudication of a claim on the merits beupheld unless the adjudication "resulted in a deci-sion that was contrary to, or involved an unrea-sonable application of, clearly established Federallaw, as determined by" this Court. See McDanielv. Brown, 130 S. Ct. 665, 673 (2010) (per curiam)(noting "the deferential review that Jackson and

23

§ 2254(d)(1) demand"); see also White, 602 F.3d at710; Foxworth v. St. Amand, 570 F.3d 414,428-29(1st Cir. 2009), cert. denied, 130 S. Cto 1710 (2010)(both rejecting legal sufficiency claims on basis ofJackson and 28 U.S.C. § 2254[d] [1]). Indeed, whenthe clearly established federal law involves a gen-eral standard, such as the Jackson standard (seeWright, 505 U.S. at 308 [Kennedy, J., concur-ring in the judgment] [describing rule of Jacksonas a "general standard"]), the state courts haveparticular "leeway in reaching outcomesin case-by-case determinations." Harrington v.Richter, 131 S. Ct. 770, 786 (2011) (quotingYarborough v. Alvarado, 541 U.S. 652,664 [2004]).As this Court recently explained:

Under § 2254(d), a habeas court must deter-mine what arguments or theories supported or¯ . . could have supported[] the state court’sdecision; and then it must ask whether it ispossible fairminded jurists could disagree thatthose arguments or theories are inconsistentwith the holding in a prior decision of thisCourt.

Harrington, 131 S. Ct at 786 (emphasis added).

In this case, the Second Circuit refashioned theJackson standard and "all but ignored" (see id.)28 U.S.C. § 2254(d)(1). Accordingly, the petitionfor certiorari should be granted.

24

I. The Second Circuit Misapplied in TwoSignificant Respects the Legal Suffi-ciency Test of Jackson t~. Virginia.

A. The Second Circuit relied heavily on theprosecutor’s summation in ruling that the evi-dence was legally insufficient. The Second Circuitcharacterized the summation as "confused"; statedthat the prosecutor had tried this case as a"botched robbery": and quoted those parts of thesummation in which the prosecutor had arguedthat the plan of the defendant and his confeder-ates was to "outnumber[]" and "outarm[]" theundercover officers and "then take what they havegot," and in which the prosecutor had argued thatthe "specific reason why these guns were pulledand used" was to "wrest . . . money" from the offi-cers (App. 14a-16a). Still focusing on the summa-tion, the Second Circuit noted that although theprosecutor mentioned the "temporal relationshipbetween the assault and the weapon possession[,]he altogether ignored the ’in furtherance of’requirement" (App. 16a) (emphasis in original).Finally, the Second Circuit quoted the prosecutor’sargument that the defendant had not expected theofficers to be able to defend themselves with gunsof their own (App. 19a-20a).

The decision of the Second Circuit seeminglyrests on the premise that if the prosecutor’s sum-mation failed to present a cogent argument onhow the assault was "in furtherance of" theweapon possession, then the actual jury could nothave found--and, apparently, no rational jurycould have found--that this element of the crimehad been proved beyond a reasonable doubt. How-ever, the Second Circuit’s reliance on the sum-

25

mation as a basis for overturning the verdict iscompletely contrary to Jackson.

The Jackson test requires the reviewing court toconsider the evidence and the legitimate infer-ences that may be drawn from the evidence. 443U.S. at 319. As is well understood, and as the trialcourt instructed the jury in this case (Tr. 1109),the arguments of counsel in summation are notevidence. See United States v. Arboleda, 20 F.3d58, 61 (2d Cir. 1994). Moreover, given the princi-ple, articulated in Jackson, that the reviewingcourt need not concern itself with the reasoningprocesses of the jury that actually rendered theverdict (443 U.S. at 319 n.13), it necessarilyfollows that the prosecutor’s summation to thejury, no matter how "confused" that summationallegedly was, is irrelevant to the reviewingcourt’s determination of whether the evidence waslegally sufficient. Just as a trier of fact is alwaysfree to reject arguments made in summation andto formulate its own lines of reasoning in supportof a finding of guilt of the accused, so, too, may anappellate court reviewing the sufficiency of theevidence.

Under Jackson, the reviewing court does notreview the sufficiency of the prosecutor’s sum-mation, but the sufficiency of "the record evidenceadduced at the trial" (443 U.S. at 324), and where,as here, the State has marshaled for the reviewingcourt a set of facts and inferences that a rationaljury could have found beyond a reasonable doubt,and according to which all of the elements of thecrime have been made out, then the reviewingcourt must uphold the verdict.

26

B. The Second Circuit also misapplied Jacksonby adopting its own, narrow construction of theNew York felony assault statute, instead of apply-ing the statute as construed by the New Yorkcourts.

In determining whether the evidence supportinga state conviction was legally sufficient, a federalhabeas court must apply the Jackson standard"with explicit reference to the substantive ele-ments of the criminal offense as defined by statelaw." Jackson, 443 U.S. at 324 n.16. The habeascourt must respect the state courts’ construction ofa state criminal statute, and is not free to divergefrom that construction in adjudicating a claim forrelief. See Hebert v. Louisiana, 272 U.S. 312, 316(1926) ("[w]hether state statutes shall be con-strued one way or another is a state question, thefinal decision of which rests with the courts of theState"); see also Bradshaw v. Richey, 546 U.S. 74,76 (2005); Johnson v. Fankell, 520 U.S. 911, 916(1997).

Under the New York courts’ construction of the"in furtherance off’ language of the felony assaultstatute and the identical language of the felonymurder statute (N.Y. Penal Law § 125.2513]), theState must show a logical nexus between theunderlying felony and the serious injury or deathof the victim; a mere temporal or spatial coinci-dence between the felony and the injury or deathwill not suffice. See People v. Lewis, 111 Misc. 2d682, 686-87, 444 N.Y.S.2d 1003, 1006-07 (Sup. Ct.1981). The State must prove that the defendantcaused the serious injury or death of the victim "inthe attempted execution of the unlawful end."People v. Joyner, 26 N.Y.2d 106, 109, 308 N.Y.S.2d

27

840, 842 (1970); People v. Wood, 8 N.Y.2d 48, 51,201 N.Y.S.2d 328, 331-32 (1960). In other words,the State must show: (1) that the defendant com-mitted acts that furthered the commission of theunderlying felony or the defendant’s immediateflight therefrom; and (2) that those same acts setin motion a chain of events that ultimatelyresulted in a person’s physical injury or death. SeePeople v. Hernandez, 82 N.Y.2d 309, 317, 604N.Y.S.2d 524, 528 (1993) (defendant must havebeen "acting in furtherance of the underlyingcrime at the time of the homicide"); Wood,8 N.Y.2d at 51, 201 N.Y.S.2d at 332 ("the actwhich results in death must be in furtherance ofthe unlawful purpose" [emphasis in original]).

The New York state courts’ construction of the"in furtherance of" element, while requiring anexus between the underlying felony and theinjury or death, does not otherwise limit the cir-cumstances under which a defendant may befound guilty of felony assault or felony murder.For example, the New York state courts havenever held that, where the underlying felony isweapon possession, the defendant may be foundguilty of felony assault or felony murder onlywhen the victim was injured or killed whileattempting to disarm the defendant. Nor have theNew York state courts ever held that where theact that results in injury or death is in further-ance of one crime (such as attempted robbery), itmay not also simultaneously be in furtherance ofa second crime (such as weapon possession).

In this case, however, the Second Circuit took itupon itself to narrow the reach of the New Yorkfelony assault statute for situations in which theunderlying felony is weapon possession, and,

28

applying its own new construction, held that theevidence was legally insufficient. The SecondCircuit stated:

We do not hold that criminal possession of aweapon may never support a felony assaultconviction. In circumstances where, unlikehere, the continued possession of the weaponunderlying the felony assault charge is threat-ened before an assault takes place, a jurymight reasonably infer that the assault wascommitted to prevent the victim from dis-arming his assailant (i.e., that the victim wasassaulted in furtherance of the assailant’scontinued possession). For example, hadMarquez responded to a threatened robberyby reaching for Cherry’s gun in an attempt todisarm him, then a jury might reasonably con-elude that Cherry caused Marquez’s injuriesin furtherance of his continued possession ofthat weapon.

(App. 17a-18a) (emphasis added). The SecondCircuit went on to conclude that because the factsof this case did not fit the single scenario that,according to that court, would support a felonyassault conviction, the evidence was legally insuf-ficient (App. 18a).

By narrowing the reach of New York’s felonyassault statute, the Second Circuit disregardedclear precedent of this Court that a habeas courtmust accept a state criminal statute as it has beenconstrued by the state courts, and decide whether,under that construction, a rational jury could havefound the elements of the statute to have beenestablished beyond a reasonable doubt. Indeed, tothe extent that, in this case, the state appellate

29

court’s determination that the evidence waslegally sufficient implicitly rested on an expansivereading of the "in furtherance of" element of thefelony assault statute, that determination islargely beyond the scope of habeas review, becausethe determination rests in part on a state court’sconstruction of a state statute.’~

Moreover, the ultimate explanation given by theSecond Circuit for its conclusion that the evidencewas insufficient--namely, that "it makes no senseto infer that the gunmen acted in furtherance ofthe possession of the weapons used to shootMarquez when those weapons were taken froma place of complete safety" before they weredisplayed and fired (App. 20a n.11)--wholly

t~ In many cases, unlike this one, the question of theconstitutional sufficiency of the evidence does not depend onthe definition of the elements of a crime under state law, andinstead depends entirely on an issue that is not one of statelaw. such as whether the evidence adequately establishedthe defendant’s identity as the perpetrator of the crime. See,e.g., Wright v. West, 505 U.S. 277 (1992). In such cases, astate court’s determination that the evidence was constitu-tionally sufficient would not involve a question of state lawand therefore would not constrain a federal court’s inde-pendent review--subject to the deferential standard of28 U.S.C. § 2254(d)--of the question whether the evidencewas sufficient.

But in this case, by contrast, to the extent that the ques-tion of the sufficiency of the evidence depends on whetherthe "in furtherance of" element of first-degree assault isgiven an expansive reading, the Second Circuit should haveaccepted the expansive reading of that element that wasimplicit in the state appellate court’s decision that the evi-dence was sufficient, rather than make its own determina-tion of the definition of the "in furtherance of’ element underNew York law. See Jackson, 443 U.S. at 324 n.16; Hebert,272 U.S. at 316.

30

misconstrues the inference that the jury rationallycould have drawn. Of course it is not a rationalinference that the gunmen would have retrieved,displayed, and fired the guns merely for the pur-pose of retaining possession of those guns, whenthe gunmen could have retained possession of theguns by not retrieving and displaying them in thefirst place. But the inference that rationally couldhave been drawn is that the gunmen, after havingretrieved the guns "from a place of completesafety" and after having displayed the guns for thepurpose of committing a robbery, chose to fire theguns for the purpose, at least in part, of continu-ing their possession of the guns by minimizing thechance that the intended robbery victims woulddisarm them. The Second Circuit erred by disal-lowing, or disregarding, that rational inferencefrom the evidence.

Accordingly, the petition for certiorari should begranted to correct the errors made by the SecondCircuit in its application of the Jackson standard.

II. The Second Circuit Failed to Accord tothe State Appellate Court the DeferenceMandated by 28 U.S.C. § 2254(d)(1).

The petition should also be granted because theSecond Circuit, while acknowledging that itsreview of the legal sufficiency of the evidence wasgoverned by the "unreasonable application" stan-dard of 28 U.S.C. § 2254(d)(1) (see App. 9a, 22a),did not accord the state appellate court anythingapproaching the degree of deference contemplatedby that statute.

"AEDPA prevents defendants--and federalcourts--from using federal habeas corpus review

as a vehicle to second-guess the reasonable deci-sions of state courts." [~(~[co ~’. Letl, 130 S. Ct.1855, 1.866 (20~0). "On federal habeas review,AEDPA ’imposes a highly deferential standard forevaluating state-court rulings’ and ’demands thatstate-court decisions be given the benefit of thedoubt.’" Felkner v. Jackson, No. 10-797, slip op. at4 (U.S. Mar. 21, 2011) (per curiam) (quotingRenico, 130 S. Ct. at 1862). Under 28 U.S.C.§ 2254(d)(1), where it is "possible [for] fairmindedjurists [to] disagree" about whether argumentsthat "could have supported" a state court’s deci-sion are inconsistent with the holding of a priordecision of this Court, then the decision of thestate court must be upheld by the habeas court.Harrington, 131 S. Ct. at 786.

District Judge Gleeson, reviewing the very sameevidence that the Second Circuit held was legallyinsufficient to establish guilt of felony assault onthe basis of the underlying felony of weapon pos-session, reached the opposite conclusion, evenwithout according the State the benefit of the28 U.S.C. § 2254(d)(1) standard of review, in thehabeas petition filed by co-defendant GamelCherry (App. 53a-56a). See supra at 15-17. TheSecond Circuit summarily dismissed JudgeGleeson’s conclusion as "unpersuasive" (App. 8an.5).v But certainly the fact that another federal

v The Second Circuit also stated that Judge G|eesonhad "cited no caselaw" in support of his interpretation of the"in furtherance oI~’ element (App. 8a n.5). But, as shownsupra at 26-28, the Second Circuit, failing to find state caselaw narrowing the definition of that element, impermissiblyfashioned its own narrowing construction of the element andthen proceeded to find that the element was not satisfied.

judge held, on de novo review, that the evidencewas legally sufficient--not merely that it wasreasonable for the state appellate court to have soheld--strongly supports the conclusion that thestate appellate court’s determination was not anunreasonable application of the Jackson standard.Cf. Butler v. McKellar, 494 U.S. 407, 415 (1990)(differing positions taken by judges of two differ-ent federal courts of appeals regarding properapplication of Supreme Court decision constitutedevidence that scope of Supreme Court decision"was susceptible to debate among reasonableminds"); see also Matteo v. Superintendent, SCIAlbion. 171 F.3d 877, 890 (3d Cir.), cert. denied,528 U.S. 824 (1999): O’Brien v. Dubois, 145 F.3d16, 25 (1st Cir. 1998).

As argued earlier (see supra at 24-29), theSecond Circuit erred in reviewing the sufficiencyof the prosecutor’s summation, rather than thesufficiency of the evidence, and in engaging in itsown construction of the felony assault statute. Butin addition to making those mistakes, the SecondCircuit seems to have concluded that the evidencewas legally insufficient because, in its view, theinferences that the State argued a rational trier offact could have drawn from the evidence (seesupra at 18-20, 29-30)--the same inferences thatJudge Gleeson concluded a rational trier of factcould have drawn from the evidence--were toospeculative, and thus, were unreasonable infer-ences (App. 10a, 19a, 21a). But those inferenceswere not unreasonable, and, in any event, thequestion before the Second Circuit was notwhether, if that court had been reviewing the suf-ficiency of the evidence de novo, that court would

33

have found those inferences unreasonable, butrather, whether it would have been an unreason-able application of Jackson for the state appellatecourt to have found that those inferences werereasonable.

Accordingly, certiorari should be granted to cor-rect the Second Circuit’s decision and to clarifythe proper standard of deference to which a statecourt’s sufficiency-of-the-evidence ruling is enti-tled on federal habeas corpus review. Indeed, inview of the obvious conflict of the decision of theSecond Circuit with Jackson and with thedecisions of this Court interpreting 28 U.S.C.§ 2254(d)(1), summary reversal of the judgment ofthe Second Circuit would be appropriate. See, e.g.,Felkner, No. 10-797; Swarthout v. Cooke, 131 S.Ct. 859 (2011) (per curiam); Wilson v. Corcoran,131 S. Ct. 13 (2010) (per curiam); Bobby v.Van Hook, 130 S. Ct. 13 (2009) (per curiam);Bradshaw v. Richey, 546 U.S. 74 (2005) (percuriam) (all summarily reversing judgments ofcourts of appeals that had granted habeas relief).

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CONCLUSION

THE PETITION FOR A WRIT OFCERTIORARI SHOULD BE GRANTED ANDTHE JUDGMENT OF THE SECOND CIRCUITSHOULD BE REVERSED.

Respectfully submitted,

CHARLES J. HYNESDistrict AttorneyKings County

LEONARD JOBLOVE*VICTOR BARALLAssistant District Attorneys

Kings County District Attorney’s Office350 Jay StreetBrooklyn, New York 11201-2908(718) 250-2511

* Counsel of Record for the Petitioner

April 7, 2011