Hare v. Rockwood

Background

Maxwell Hare was convicted after a New York jury trial of attempted first-degree gang assault, attempted second-degree assault, second-degree riot, and two counts of attempted third-degree assault. The charges arose from a fight outside the Metropolitan Republican Club in Manhattan involving Hare, other Proud Boys members, and people associated with Antifa. The opinion states that video footage showed Hare grabbing, punching, and kicking two protesters. Hare admitted participating in the fight but argued that he used force to defend himself and others.

Hare received an aggregate sentence of four years in prison followed by five years of post-release supervision. The Appellate Division, First Department, affirmed the convictions, and the New York Court of Appeals denied leave to appeal.

Claims in the Federal Petition

Hare sought relief under 28 U.S.C. § 2254, the federal statute allowing a state prisoner to challenge custody based on federal-law violations. He asserted five grounds: that the trial court admitted inflammatory testimony about Proud Boys founder Gavin McInnes; that the court improperly instructed the jury about “combat by agreement” as an exception to the justification defense; that the evidence was legally insufficient; that the court improperly answered two jury notes; and that comments by two Appellate Division justices showed they misunderstood facts during oral argument.

Procedural Default

The report and recommendation concluded that Hare had not exhausted his federal claims in state court. Although he raised four of the claims before the Appellate Division, his application asking the New York Court of Appeals to review the case focused on three state-law arguments and did not explicitly present the constitutional claims. Because Hare had already used his one opportunity to seek leave to appeal, the recommendation concluded that the claims were procedurally defaulted, meaning the federal court could not review them absent an exception.

The recommendation also identified a separate procedural bar for the inflammatory-testimony claim. The Appellate Division had ruled that Hare failed to make a timely objection at trial under New York’s contemporaneous-objection rule. The report concluded that Hare did not show a legally recognized reason for these defaults, resulting prejudice, or reliable new evidence demonstrating actual innocence.

Alternative Merits Analysis

The report separately analyzed the claims on the merits in case the procedural bars did not apply.

For the inflammatory-testimony claim, it concluded that the testimony about McInnes was of limited importance and that the trial court gave the jury a limiting instruction. The report emphasized the other evidence of guilt, including Hare’s testimony and video and photographic evidence, and concluded that the challenged testimony did not have a substantial and harmful effect on the verdict.

For the combat-by-agreement instruction, the report concluded that the evidence could support a finding of a tacit agreement to fight between the opposing groups. It also concluded that, even if the instruction had been erroneous, the error did not deprive Hare of due process because the evidence supported other reasons to reject justification, including that Hare was the initial aggressor, could have retreated, and attacked people who were on the ground or not fighting back.

For sufficiency of the evidence, the report concluded that the evidence supported each challenged attempted-assault conviction. It stated that the attempted offenses did not require proof that the victims actually suffered injuries. It also concluded that the evidence supported findings that Hare intended to cause the required injuries and that his conduct was not justified.

For the jury-note claims, the report concluded that the trial court accurately stated the definitions of “physical injury” and “serious physical injury.” It also concluded that the court correctly told the jury there were no lesser versions of attempted gang assault, because second-degree gang assault cannot legally be charged as an attempt. The report further stated that any error would not have amounted to a constitutional violation given the strength of the evidence.

For the claim concerning the Appellate Division justices’ oral-argument comments, the report concluded that Hare had not shown that any misunderstanding during argument affected the written appellate decision. It also characterized the alleged factual errors as minor and legally irrelevant.

Recommendation and Review Process

Katharine H. Parker, the magistrate judge who prepared the report and recommendation, recommended that the petition be denied and the case dismissed. The recommendation was submitted to District Judge Colleen McMahon. The notice stated that the parties had fourteen days after service to file objections and that failing to object timely would waive objections for purposes of appeal.