12-2596

Kinley v. Artus

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 27th 4 day of June, two thousand fourteen.

5

6 PRESENT: DENNIS JACOBS,

7 CHESTER J. STRAUB,

8 REENA RAGGI,

9 Circuit Judges.

10

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12 Robert Kinley, 

13 Petitioner-Appellant,

14

15 -v.- 12-2596

16

17 Dale A. Artus,

18 Respondent-Appellee.

19

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21

22 FOR APPELLANT: SALLY WASSERMAN, Law Office of

23 Sally Wasserman, New York, New

24 York.

25

26 FOR APPELLEES: RUTH E. ROSS (Leonard Joblove,

27 Solomon Neubort, on the brief),

1
1 Assistant District Attorneys,

2 for Charles J. Hynes, District

3 Attorney Kings County, Brooklyn,

4 New York.

5

6 Appeal from a judgment of the United States District

7 Court for the Eastern District of New York (Brodie, J.).

8

9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

10 AND DECREED that the judgment of the district court be

11 AFFIRMED. 

12

13 Robert Kinley appeals from the denial of his petition

14 for a writ of habeas corpus challenging his New York State

15 conviction, following a jury trial, for depraved

16 indifference murder. See N.Y. Penal Law § 125.25[2].

17 Relying on a New York Court of Appeals decision

18 reinterpreting the elements of depraved indifference murder,

19 Kinley argues that the evidence at trial was insufficient as

20 a matter of law. See People v. Feingold, 7 N.Y.3d 288

21 (2006). The evidence, Kinley asserts, showed that he acted

22 with the specific intent to kill rather than with depraved

23 indifference to human life.

24

25 We granted a certificate of appealability to decide

26 “(1) whether, despite his procedural default in state court,

27 Appellant may raise his legal sufficiency of the evidence

28 claim, pursuant to the fundamental miscarriage of justice

29 exception in Murray v. Carrier, 477 U.S. 478, 496 (1986);

30 and (2) if the Appellant satisfies the fundamental

31 miscarriage of justice exception and may raise his claim,

32 whether Appellant’s conviction for depraved indifference

33 murder was supported by legally sufficient evidence.” 

34

35 We consider the miscarriage-of-justice question de

36 novo. See Cornell v. Kirkpatrick, 665 F.3d 369, 374 (2d

37 Cir. 2011). We assume the parties’ familiarity with the

38 facts and record of prior proceedings.

39

40 “As a general rule, claims forfeited under state law

41 may support federal habeas relief only if the prisoner

42 demonstrates cause for the default and prejudice from the

43 asserted error.” House v. Bell, 547 U.S. 518, 536 (2006).

44 “The bar is not, however, unqualified.” Id. The Supreme

45 Court has recognized “a miscarriage-of-justice exception” in

46 circumstances necessary to “correct[] a fundamentally unjust

47 incarceration.” Id. (internal quotation marks omitted). 

2
1 Miscarriage occurs only “in an extraordinary case, where a

2 constitutional violation has probably resulted in the

3 conviction of one who is actually innocent.” Carrier, 477

4 U.S. at 496. “‘[A]ctual innocence’ means factual innocence,

5 not mere legal insufficiency.” Dunham v. Travis, 313 F.3d

6 724, 730 (2d Cir. 2002) (alteration in original) (quoting

7 Bousley v. United States, 523 U.S. 614, 623 (1998))

8 (internal quotation marks omitted). Moreover, that factual

9 innocence requirement applies not only to the count of

10 conviction, but also to charges that are equally or more

11 serious. See Bousley, 523 U.S. at 624 (holding, in context

12 of challenged conviction based on guilty plea, that

13 petitioner’s burden to demonstrate actual innocence extends

14 to more serious charges forgone by government in course of

15 plea bargaining).

16

17 Kinley does not argue that he is actually innocent of

18 killing his victim, Nathalie Lodge. Instead, he argues that

19 it would be a miscarriage of justice to reject his

20 sufficiency claim as procedurally barred because he is

21 actually innocent of the particular crime of depraved

22 indifference murder, which requires the precise mens rea

23 outlined in Feingold. The verdict, however, is consistent

24 with the defense advanced at trial that Kinley had killed

25 Lodge by accident. Only afterward, on appeal, did the

26 defense argue that “there was no possible explanation for

27 the use of the belt around Lodge’s neck and the plastic bag

28 over her head that could even remotely have suggested

29 accident or a mens rea other than intentional.”

30

31 There is nothing “fundamentally unjust,” House, 547

32 U.S. at 536 (internal quotation marks omitted), about

33 Kinley’s continued incarceration for what he indisputably

34 did: kill Nathalie Lodge by inflicting blunt impact head

35 trauma and suffocating her. Whether acting intentionally or

36 with a depraved indifference, Kinley committed second degree

37 murder under New York criminal law, circumstances that do

38 not demonstrate the actual innocence requiring us to address

39 the merits of Kinley’s defaulted sufficiency claim in order

40 to avoid manifest injustice. Garbutt v. Conway, 668 F.3d

41 79, 83 (2d Cir. 2012) (per curiam) (concluding that a

42 miscarriage of justice did not exist where the petitioner

43 was convicted of depraved indifference murder and argued

44 that he should have been convicted of intentional murder);

45 see also Calderon v. Thompson, 523 U.S. 538, 559 (1998)

46 (“[T]he miscarriage of justice exception is concerned with

47 actual as compared to legal innocence.” (alteration in

3
1 original) (internal quotation marks omitted)); Dunham, 313

2 F.3d at 730. In any event, the verdict of guilty on

3 depraved indifference murder is consistent with the defense

4 advanced at trial. Kinley told the jury that, in assaulting

5 Lodge, he never intended to kill her and went to bed

6 thinking that she was still alive. To the extent this

7 testimony could have raised a reasonable doubt as to

8 Kinley’s specific murderous intent, a reasonable jury could

9 nevertheless have found that for him to go to bed when Lodge

10 was no longer moving after a brutal assault manifested a

11 mens rea of depraved indifference. See People v. Suarez, 6

12 N.Y.3d 202, 212 (2005) (stating that abandoning “helpless

13 and vulnerable victim” who is “highly likely to die . . . --

14 arising from a situation created by the defendant--properly

15 establishes depraved indifference murder”); see also

16 Garbutt, 668 F.3d at 82 (rejecting sufficiency claim because

17 jury could have inferred from fact that defendant ran away

18 without ascertaining if victim had died that he had not

19 intended to kill her).

20

21 For the foregoing reasons, and finding no merit in

22 Kinley’s other arguments, we hereby AFFIRM the judgment of

23 the district court.

24

25 FOR THE COURT:

26 CATHERINE O’HAGAN WOLFE, CLERK

27

4