McTiernan v. Tedford

Background

Kelly McTiernan sought federal habeas relief under 28 U.S.C. § 2254 from a New York conviction for first-degree manslaughter. Following a 2016 jury trial in New York Supreme Court, New York County, McTiernan was convicted and sentenced to 20 years’ imprisonment. The conviction arose from McTiernan’s stabbing of Fain Upshur in Manhattan in 2007.

At trial, McTiernan relied on justification defenses. McTiernan testified that Upshur lunged at McTiernan after McTiernan demanded the return of a cell phone, and that McTiernan stabbed Upshur to defend against the attack. The jury found McTiernan not guilty of second-degree murder and third-degree criminal possession of a weapon, but guilty of first-degree manslaughter.

McTiernan previously had been convicted of second-degree murder in a 2010 trial. The New York Appellate Division reversed that conviction and ordered a new trial because the jury instructions had not clearly explained that deadly force could be justified to resist a robbery involving physical force even when the alleged robber was not using deadly force.

Claims in the Federal Petition

McTiernan raised three challenges involving the 2016 trial court’s instructions on justification:

McTiernan also claimed ineffective assistance of counsel because trial counsel failed to object to the third instruction. McTiernan argued that the alleged errors individually and together violated the constitutional right to a fair trial and due process.

Report and Recommendation and Review

Judge James L. Cott recommended denying the petition. He concluded that the three jury-instruction claims had been presented to the state courts but were barred from federal review because the state appellate court relied on independent and adequate state-law grounds. In this context, that means the state court’s decision rested on a state-law rule that was separate from the federal issue and firmly established enough to support the decision. Judge Cott also concluded, alternatively, that the claims failed on their merits. He rejected the ineffective-assistance claim because McTiernan had not shown that counsel’s failure to object probably affected the verdict.

Judge Cronan reviewed McTiernan’s objections and adopted the report and recommendation in its entirety. The court also held that McTiernan’s release on parole did not make the petition moot because McTiernan remained subject to parole conditions and criminal convictions can carry continuing legal consequences.

Analysis

Robbery instruction. The trial court instructed the jury using the statutory definition of robbery under New York law, including the requirement that physical force be used or threatened immediately. The Appellate Division had determined that the instruction correctly stated New York law and that whether force was used immediately after the cell phone was taken was a question for the jury. Judge Cronan found no error in Judge Cott’s conclusion that the claim was procedurally barred and meritless. The court therefore overruled McTiernan’s objections to this claim.

Instruction concerning an arrest. McTiernan argued that the evidence supported an instruction allowing the jury to find justification for deadly force used to arrest a person who had committed robbery and was immediately fleeing. The Appellate Division had ruled that the issue was not preserved for review and, alternatively, rejected it because there was no evidence that McTiernan stabbed Upshur to make or facilitate an arrest.

Judge Cronan agreed that New York’s contemporaneous-objection rule barred federal review. That rule generally requires a defendant to bring an alleged instructional error to the trial court’s attention in time for the court to correct it. Although counsel requested an instruction concerning justification to effect an arrest, the trial court denied the request because it did not apply to the case, and counsel did not challenge that explanation. The federal court concluded that applying the state rule was not an extraordinary or unfair application of the rule.

The court also reviewed the alternative merits analysis. It concluded that McTiernan’s testimony about loudly demanding the return of the cell phone in hopes that someone would call the police showed a possible motive for seeking police assistance, but did not show that McTiernan stabbed Upshur to stop Upshur from fleeing or to help police apprehend Upshur. The court therefore agreed that the evidence did not support the requested instruction and that the refusal to give it did not violate due process.

Instruction concerning resisting robbery and ineffective assistance. The trial court correctly explained the robbery-based justification defense three times, using the standard of unlawful physical force. On the fourth explanation, however, the judge said that McTiernan had to believe Upshur was using or about to use deadly physical force. Trial counsel did not object.

Judge Cronan agreed that the jury-instruction claim was procedurally barred because the state appellate court found it unpreserved. The court then addressed the ineffective-assistance claim. Under the constitutional standard for ineffective assistance, a defendant must show both that counsel’s performance fell below an objectively reasonable standard and that the deficiency probably affected the result.

The court concluded that McTiernan failed to show prejudice. The incorrect statement occurred once, after the judge had given the correct instruction three times. The written jury instructions also stated the correct standard, and the jurors did not send a note identifying a conflict between the oral and written instructions. In these circumstances, the court found it highly unlikely that the isolated misstatement affected the verdict. The court further concluded that the misstatement did not infect the entire trial in a way that violated due process.

Cumulative-error claim

The court rejected McTiernan’s argument that the alleged errors, considered together, required relief. Because the court found no meritorious individual claim supporting habeas relief, it concluded that there could be no accumulation of errors warranting relief.

Disposition

Judge Cronan overruled McTiernan’s objections, adopted the report and recommendation in its entirety, and denied McTiernan’s petition for a writ of habeas corpus. Because McTiernan had not made a substantial showing that a constitutional right was denied, the court declined to issue a certificate of appealability. The Clerk was directed to close the case and enter judgment in favor of the respondent.