12-2596 Kinley v. Artus



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
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**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 27 th** **day of June, two thousand fourteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **CHESTER J. STRAUB,** 7 **REENA RAGGI,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **Robert Kinley,** 12 **Petitioner-Appellant ,**  13 14 **-v.- 12-2596** 15 16 **Dale A. Artus,** 17 **Respondent-Appellee**

**.** 18 19 - - - - - - - - - - - - - - - - - - - -X 20 21 **FOR APPELLANT:** SALLY WASSERMAN, Law Office of 22 Sally Wasserman, New York, New 23 York. 24 25 **FOR APPELLEES:** RUTH E. ROSS (Leonard Joblove, 26 Solomon Neubort, on the brief ), 27

1Assistant District Attorneys, 1 forCharles J. Hynes, District 2 Attorney Kings County, Brooklyn, 3 New York. 4 5 Appeal from a judgment of the United States District 6 Court for the Eastern District of New York (Brodie, J. ). 7 8 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 9 **AND DECREED**that the judgment of the district court be 10
**AFFIRMED**

. 11 12 Robert Kinley appeals from the denial of his petition 13 for a writ of habeas corpus challenging his New York State 14 conviction, following a jury trial, for depraved 15 indifference murder. SeeN.Y. Penal Law § 125.25[2]. 16 Relying on a New York Court of Appeals decision 17 reinterpreting the elements of depraved indifference murder, 18 Kinley argues that the evidence at trial was insufficient as 19 a matter of law. SeePeople v. Feingold , 7 N.Y.3d 288 20 (2006). The evidence, Kinley asserts, showed that he acted 21 with the specific intent to kill rather than with depraved 22 indifference to human life. 23 24 We granted a certificate of appealability to decide 25 “(1) whether, despite his procedural default in state court, 26 Appellant may raise his legal sufficiency of the evidence 27 claim, pursuant to the fundamental miscarriage of justice 28 exception in Murray v. Carrier , 477 U.S. 478, 496 (1986); 29 and (2) if the Appellant satisfies the fundamental 30 miscarriage of justice exception and may raise his claim, 31 whether Appellant’s conviction for depraved indifference 32 murder was supported by legally sufficient evidence.” 33 34 We consider the miscarriage-of-justice question de 35

novo . SeeCornell v. Kirkpatrick , 665 F.3d 369, 374 (2d 36 Cir. 2011). We assume the parties’ familiarity with the 37 facts and record of prior proceedings. 38 39 “As a general rule, claims forfeited under state law 40 may support federal habeas relief only if the prisoner 41 demonstrates cause for the default and prejudice from the 42 asserted error.” House v. Bell , 547 U.S. 518, 536 (2006). 43 “The bar is not, however, unqualified.” Id. The Supreme 44 Court has recognized “a miscarriage-of-justice exception” in 45 circumstances necessary to “correct[] a fundamentally unjust 46 incarceration.” Id. (internal quotation marks omitted). 47

2Miscarriage occurs only “in an extraordinary case, where a 1 constitutional violation has probably resulted in the 2 conviction of one who is actually innocent.” Carrier , 477 3 U.S. at 496. “‘[A]ctual innocence’ means factual innocence, 4 not mere legal insufficiency.” Dunham v. Travis , 313 F.3d 5 724, 730 (2d Cir. 2002) (alteration in original) (quoting 6 Bousley v. United States , 523 U.S. 614, 623 (1998)) 7 (internal quotation marks omitted). Moreover, that factual 8 innocence requirement applies not only to the count of 9 conviction, but also to charges that are equally or more 10 serious. SeeBousley , 523 U.S. at 624 (holding, in context 11 of challenged conviction based on guilty plea, that 12 petitioner’s burden to demonstrate actual innocence extends 13 to more serious charges forgone by government in course of 14 plea bargaining). 15 16 Kinley does not argue that he is actually innocent of 17 killing his victim, Nathalie Lodge. Instead, he argues that 18 it would be a miscarriage of justice to reject his 19 sufficiency claim as procedurally barred because he is 20 actually innocent of the particular crime of depraved 21 indifference murder, which requires the precise mens rea 22 outlined in Feingold . The verdict, however, is consistent 23 with the defense advanced at trial that Kinley had killed 24 Lodge by accident. Only afterward, on appeal, did the 25 defense argue that “there was no possible explanation for 26 the use of the belt around Lodge’s neck and the plastic bag 27 over her head that could even remotely have suggested 28 accident or a mens reaother than intentional.” 29 30 There is nothing “fundamentally unjust,” House , 547 31 U.S. at 536 (internal quotation marks omitted), about 32 Kinley’s continued incarceration for what he indisputably 33 did: kill Nathalie Lodge by inflicting blunt impact head 34 trauma and suffocating her. Whether acting intentionally or 35 with a depraved indifference, Kinley committed second degree 36 murder under New York criminal law, circumstances that do 37 not demonstrate the actual innocence requiring us to address 38 the merits of Kinley’s defaulted sufficiency claim in order 39 to avoid manifest injustice. Garbutt v. Conway , 668 F.3d 40 79, 83 (2d Cir. 2012) (per curiam) (concluding that a 41 miscarriage of justice did not exist where the petitioner 42 was convicted of depraved indifference murder and argued 43 that he should have been convicted of intentional murder); 44 see alsoCalderon v. Thompson , 523 U.S. 538, 559 (1998) 45 (“[T]he miscarriage of justice exception is concerned with 46 actual as compared to legal innocence.” (alteration in 47

3original) (internal quotation marks omitted)); Dunham , 313 1 F.3d at 730. In any event, the verdict of guilty on 2 depraved indifference murder is consistent with the defense 3 advanced at trial. Kinley told the jury that, in assaulting 4 Lodge, he never intended to kill her and went to bed 5 thinking that she was still alive. To the extent this 6 testimony could have raised a reasonable doubt as to 7 Kinley’s specific murderous intent, a reasonable jury could 8 nevertheless have found that for him to go to bed when Lodge 9 was no longer moving after a brutal assault manifested a 10

mens reaof depraved indifference. See People v. Suarez , 6 11 N.Y.3d 202, 212 (2005) (stating that abandoning “helpless 12 and vulnerable victim” who is “highly likely to die . . . -- 13 arising from a situation created by the defendant--properly 14 establishes depraved indifference murder”); see also 15 Garbutt , 668 F.3d at 82 (rejecting sufficiency claim because 16 jury could have inferred from fact that defendant ran away 17 without ascertaining if victim had died that he had not 18 intended to kill her). 19 20 For the foregoing reasons, and finding no merit in 21 Kinley’s other arguments, we hereby **AFFIRM** the judgment of 22 the district court. 23 24 FOR THE COURT: 25 CATHERINE O’HAGAN WOLFE, CLERK 26 27

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