Brito v. Keyser

Background

John Brito, representing himself, filed a petition under 28 U.S.C. § 2254 asking the federal court to review his state convictions for second-degree assault and third-degree criminal possession of a weapon. The convictions arose from an August 2015 confrontation with two neighbors during which Brito hit one neighbor in the face with pliers. He was sentenced to five years in prison followed by five years of supervised release and was sentenced as a predicate felon based on an earlier conviction, which he did not challenge.

Brito raised three issues. First, he argued that the state trial court should have excused a prospective juror for cause because of her relatives’ law-enforcement work and her and her niece’s experiences as crime victims. His lawyer ultimately used a peremptory challenge to remove her. Second, he argued that the trial court should have instructed the jury on negligent assault in the third degree as a lesser included offense. The trial court included an instruction on third-degree assault under New York Penal Law § 120.00(1), but not negligent assault, because Brito had testified that he intentionally struck the victim in self-defense. Third, Brito argued that his sentence should be reduced.

Report and Recommendation

Magistrate Judge Gorenstein recommended denying the petition in full. Neither party objected. Judge Caproni therefore reviewed the recommendation for clear error on the record and found none. The court also stated that the claims would fail even under the more searching review that would apply if the court had been required to review them from the beginning.

Court’s Analysis

The court rejected the jury-selection claim. Brito did not argue that the jury that actually heard the case was biased. The court held that, when the seated jury is impartial, having to use a peremptory challenge to remove a prospective juror does not violate the Sixth Amendment. Although state law allowed review of the trial court’s decision on the for-cause challenge, the loss of a peremptory challenge alone did not provide a basis for federal habeas relief.

The court held that the challenge to the missing negligent-assault instruction was not cognizable under federal habeas law, meaning that this type of claim could not be considered on the basis presented. Federal law clearly requires lesser-offense instructions in capital cases, but the Supreme Court had not clearly established that the Due Process Clause requires such an instruction in a noncapital case. Without clearly established Supreme Court law supporting Brito’s claim, the court could not grant relief under § 2254.

The court also rejected the sentencing claim. It stated that a sentence within the range permitted by state law ordinarily does not present a federal constitutional issue. Brito did not argue that his sentence exceeded the permitted range or present one of the rare cases requiring extended review for unconstitutional disproportionality.

Disposition

The court adopted the report and recommendation in its entirety and denied the petition. Because Brito had not made a substantial showing that a constitutional right was denied, the court declined to issue a certificate of appealability. It also certified that an appeal would not be taken in good faith and denied permission to proceed without paying filing fees for an appeal. The court stated that the parties’ failure to object to the recommendation barred appellate review, directed the clerk to mail Brito a copy of the order, terminated all open motions, and closed the case.