Ash v. Burnett

Background

Damon Ash, representing himself, filed a petition under 28 U.S.C. § 2254 seeking federal review of his New York convictions. He had been convicted of second-degree assault, third-degree criminal possession of a weapon, first-degree coercion, third-degree intimidating a witness, and fourth-degree tampering with a witness. He received an aggregate prison sentence of 8 and 1/3 years and was released in November 2023.

The state appellate court dismissed Ash’s first-degree coercion conviction and otherwise affirmed his convictions. Ash later filed three state post-conviction motions. The state courts denied those motions, including one that raised ineffective assistance of counsel based on counsel’s handling of a justification defense.

Habeas Jurisdiction

The court held that Ash’s release did not deprive it of jurisdiction. He was in custody when he filed the petition, satisfying the custody requirement for federal habeas review. His release also did not make the case moot because felony convictions carry possible continuing legal consequences.

Justification Instruction

Ash argued that the trial court violated federal law by refusing to instruct the jury on justification, or self-defense, for the charges arising from his assault of Mendez. Under New York law, a justification instruction is required when a reasonable view of the evidence could support the defense. For deadly force, the evidence must support both Ash’s actual belief that deadly force was necessary and the reasonableness of that belief.

The court denied relief on this claim. It found that the trial evidence provided little support for self-defense. Mendez appeared to be unarmed; no witness testified to seeing a knife; no knife was recovered; and the statements about a knife or blade could be explained by the broken glass. The evidence also indicated that Ash was the initial aggressor. In addition, Ash did not testify, and no witness provided evidence about what Ash believed during the incident, leaving the subjective part of the defense unsupported.

The court concluded that the refusal to give the instruction did not so damage the trial that Ash’s conviction violated due process. It also held that the state appellate court’s decision was not an unreasonable application of clearly established federal law and was not based on an unreasonable determination of the facts, as required for relief under the federal habeas statute.

Ineffective Assistance of Counsel

Ash argued that his lawyer failed to investigate and introduce evidence supporting his account, including a recording of his police interview, a search-warrant affidavit, medical records, and statements by a police officer about Ash’s account of the incident.

The court first concluded that this claim appeared to be procedurally barred. Ash raised this particular ineffective-assistance argument for the first time in his third state post-conviction motion, which the state court denied under provisions barring claims that could have been raised earlier or had already been addressed. Ash did not show cause for the default, actual prejudice, or a fundamental miscarriage of justice that would allow federal review despite the bar.

The court also considered the claim on the merits and found that it would not justify relief. The medical records postdated the incident and did not show that Ash was physically unable to assault Mendez. Ash’s post-arrest statements were self-serving statements that likely would have been inadmissible hearsay if offered to prove the truth of his account. The court further noted that defense counsel repeatedly requested a justification instruction and cited the evidence that could support it; the record did not show deficient performance or inadequate investigation.

Requests for Documents and Counsel

Ash asked the court to order Respondent to provide various documents. The court noted that some appeared already to be in the record, including a warrant attached to Ash’s petition, and concluded that the requested documents would not change the result because they were not relevant to whether Ash was improperly denied a justification defense or received ineffective assistance.

Ash also requested appointed counsel. The court denied that request because he had not made the required initial showing that his petition was likely to have merit, and the court found no material legal or factual ambiguity requiring appointed counsel.

Disposition

The court denied Ash’s petition for a writ of habeas corpus, directed the Clerk of Court to close the case, and declined to issue a certificate of appealability. It also certified that any appeal would not be taken in good faith.