07-0664-pr; 09-2041-pr

Mannix v. Phillips; Archer v. Fischer

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4 

5

6 August Term, 2009

7

8 (Argued: July 12, 2010 Decided: August 30, 2010)

9

10 Docket Nos. 07-0664-pr; 09-2041-pr

11 

12

13 JOHN MANNIX,

14

15 Petitioner-Appellant,

16

17 –v.– 

18

19 WILLIAM PHILLIPS,

20

21 Respondent-Appellee.

22 

23

24 JERMAINE ARCHER,

25

26 Petitioner-Appellant,

27

28 -v.-

29

30 BRIAN FISCHER,

31

32 Respondent-Appellee.

33 

34

35 Before: RAGGI, WESLEY, HALL, Circuit Judges.

36

37 Appeals from judgments of the United States District

38 Courts for the Southern and Eastern Districts of New York,

39 denying petitioners’ petitions, brought pursuant to 28

40 U.S.C. § 2254, for writs of habeas corpus.
2

1 Petitioners John Mannix and Jermaine Archer contend

2 that, at the time that each of their convictions became

3 final, New York’s depraved indifference murder statute, N.Y.

4 Penal Law § 125.25(2), was unconstitutionally vague as

5 applied to them. We hold that the New York state courts’

6 determination that the depraved indifference murder statute

7 was not unconstitutionally vague was not contrary to, or an

8 unreasonable application of, clearly established Supreme

9 Court precedent.

10 We further hold, with respect to petitioner Mannix,

11 that legally sufficient evidence supports his conviction. 

12 Finally, we hold that even if Mannix’s claim based on the

13 prison mailbox rule is properly before this Court, no relief

14 is warranted on this basis.

15 Accordingly, the judgments of the district courts,

16 denying the petitions for writs of habeas corpus, are hereby

17 AFFIRMED.

18 

19

20 RANDA D. MAHER, Great Neck, New York, for

21 Petitioner-Appellant John Mannix.

22

23 SHERYL FELDMAN, Assistant District Attorney, for

24 Cyrus R. Vance, Jr., District Attorney, New

25 York County, New York, New York, for

26 Respondent-Appellee William Phillips.

27 

28

29 SALLY WASSERMAN, New York, New York, for

30 Petitioner-Appellant Jermaine Archer.

31

32 HOWARD B. GOODMAN (Leonard Joblove, Sholom J.

33 Twersky, Assistant District Attorneys, on the

34 brief), Assistant District Attorney, for

35 Charles J. Hynes, District Attorney, Kings

36 County, Brooklyn, New York, for Respondent37 Appellee Brian Fischer.

38 
 To the extent the district court reached a contrary 1

result based on a report and recommendation from Magistrate

Judge Gabriel W. Gorenstein to which it appeared Mannix did

not object, Mannix here invokes the prison mailbox rule to

argue that he satisfied his objection obligation even if the

objections were not received by the district court.

3

1 WESLEY, Circuit Judge:

2 John Mannix appeals from a judgment of the United

3 States District Court for the Southern District of New York

4 (Richard Conway Casey, Judge) denying his petition for a

5 writ of habeas corpus. Jermaine Archer appeals from a

6 judgment of the United States District Court for the Eastern

7 District of New York (Joseph F. Bianco, Judge) denying his

8 petition for a writ of habeas corpus. We heard the appeals

9 in tandem because both petitioners argue that, at the time

10 their convictions became final, the definition of depraved

11 indifference murder under New York law, see N.Y. Penal Law

12 § 125.25(2), was unconstitutionally vague. Mannix further

13 argues that the evidence was legally insufficient to support

14 his conviction.1

15 The New York state courts’ rejection of petitioners’

16 vagueness claims was not contrary to, or an unreasonable

17 application of, clearly established Supreme Court precedent. 

18 28 U.S.C. § 2254(d)(1). At the times petitioners’
4

1 convictions became final, New York’s depraved indifference

2 murder statute, N.Y. Penal Law § 125.25(2), provided them

3 with notice that their conduct was prohibited. And, the

4 statute did not authorize or encourage arbitrary

5 enforcement. 

6 Petitioners argue that, at the time that each of their

7 convictions became final, the depraved indifference murder

8 statute, id. § 125.25(2), was constitutionally defective

9 because the differences between that statute and the statute

10 governing reckless manslaughter, or manslaughter in the

11 second degree, id. § 125.15(1), were indiscernible or non12 existent. In support, petitioners cite two decisions by a

13 former judge of the United States District Court for the

14 Southern District of New York granting habeas corpus relief

15 from convictions on this ground. See St. Helen v.

16 Senkowski, No. 02 Civ. 10248, 2003 WL 25719647 (S.D.N.Y.

17 Sept. 22, 2003), rev’d on other grounds, 374 F.3d 181 (2d

18 Cir. 2004); Jones v. Keane, No. 02 Civ. 1804, 2002 WL

19 33985141 (S.D.N.Y. May 22, 2002), rev’d on other grounds,

20 329 F.3d 290 (2d Cir. 2003). We conclude that the argument

21 lacks merit. The depraved indifference murder and reckless

22 manslaughter statutes were distinct at the times that
5

1 petitioners’ convictions were finalized. And, in any event,

2 an act may violate more than one criminal statute, and the

3 government may prosecute a defendant under either one

4 without raising constitutional vagueness concerns under the

5 Due Process Clause. What the Constitution’s Equal

6 Protection Clause demands is that the government not

7 discriminate against a class of defendants in the exercise

8 of its prosecutorial discretion.

9 We also hold that legally sufficient evidence supports

10 Mannix’s conviction. Finally, we need not resolve the

11 question of whether or not, pursuant to the prison mailbox

12 rule, Mannix’s objections to the magistrate judge’s report

13 and recommendation are properly presented to this Court. 

14 Even if this claim is properly before us, Mannix is not

15 entitled to any relief on this basis because the

16 magistrate’s report and recommendation were not in error.

17 I. BACKGROUND

18 A. Petitioner John Mannix

19 In the early morning hours of February 26, 2000, in a

20 Manhattan bar, Mannix got into a heated exchange with an

21 individual named Matthew Torruella. Mannix v. Phillips, 390

22 F. Supp. 2d 280, 283 (S.D.N.Y. 2005). Eventually, the two
6

1 men ended up in a physical altercation. Id. The dispute

2 appeared to come to an end when Mannix pinned Torruella up

3 against a wall and the two men then separated. Id.

4 However, as Mannix was backing away, Torruella “sucker5 punched” him in the face. Id. Apparently recognizing that

6 Mannix was angry, Torruella’s companion pulled Torruella

7 into the ladies’ room at the back of the bar — a one-person

8 restroom, approximately four feet by eight feet in size —

9 and locked the door. Id. Moments later, Mannix followed. 

10 Id. 

11 According to witnesses, Mannix kicked and pounded the

12 bathroom door for between thirty seconds and two minutes. 

13 Id. At this point, as least one witness indicated that she

14 heard something that sounded like a gunshot while Mannix was

15 still in front of the door. Id. at 283-84. Others

16 testified to hearing loud pounding noises and something that

17 sounded like someone throwing himself against a door. Id.

18 Mannix fatally shot Torruella in the chest through the

19 bathroom door. Id. at 284. Mannix then left, but later

20 called the bar and asked if he had “hit anyone.” Id. When

21 he was told that he had, he responded, “good,” and hung up. 

22 Id. An investigating officer determined that the bullet
 The judge provided the jury with the following 2

definition of recklessness:

A person [acts] recklessly with respect to

another person’s death, when that person

engages in conduct which creates a

substantial, unjustifiable and grave risk

that another person’s death will occur, and

when he is aware of and consciously

disregards that risk. 

And when that risk is of such nature

and degree that disregard of it constitutes

7

1 hole in the bathroom door was “dead center in the middle of

2 the door at approximately chest level.” Id. (internal

3 quotation marks omitted).

4 Mannix was charged with depraved indifference murder,

5 N.Y. Penal Law § 125.25(2), and the lesser included offense

6 of reckless manslaughter, id. § 125.15(1). The court

7 explained to the jury that, if it was “satisfied beyond a

8 reasonable doubt of the guilt of the defendant,” it could

9 “find him guilty of only one of these crimes.” Trial Tr.

10 1067:17-19. The judge informed the jury that a person is

11 guilty of depraved indifference murder “when under

12 circumstances evincing a depraved indifference to human life

13 he recklessly engages in conduct which creates a grave risk

14 of death to another person, and thereby causes the death of

15 that person.” Trial Tr. 1068:9-12. The court made it 2
a gross deviation from the standard of

conduct that a reasonable person would

observe in the situation.

Trial Tr. 1068:16-25; see also N.Y. Penal Law § 15.05(3).

8

1 clear that in order for the jury to find Mannix guilty of

2 depraved indifference murder, it had to “decide whether the

3 circumstances surrounding his reckless conduct when

4 objectively viewed, made it so uncaring, so callous, so

5 dangerous and so inhuman as to demonstrate an attitude of

6 total and utter disregard for the life of the person or

7 persons endangered.” Trial Tr. 1069:17-21. The judge

8 further instructed:

9 Under our law a crime committed

10 recklessly is generally regarded as less

11 serious and blameworthy than a crime

12 committed intentionally. But when reckless

13 conduct is engaged in under circumstances

14 evincing a depraved indifference to human

15 life, the law regards that conduct as so

16 serious, so egregious as to be the

17 equivalent of intentional conduct. 

18 Conduct evincing a depraved

19 indifference to human life is much more

20 serious and blameworthy than conduct which

21 is merely reckless. It is conduct which

22 beyond being reckless is so wanton, so

23 deficient of moral sense and concern, so

24 devoid of regard for life or lives of

25 others, as to equal in blameworthiness

26 intentional conduct, which produces the

27 same result. Trial Tr. 1069:1-14.

28
 Petitioner Mannix was sentenced to a term of 3

imprisonment of eighteen years for the depraved indifference

murder charge on which he was convicted.

9

1 The judge instructed that if the jury did not find Mannix

2 guilty of depraved indifference murder, it should next

3 consider whether the government proved beyond a reasonable

4 doubt that he was guilty of reckless manslaughter. The

5 judge explained that “a person is guilty of [reckless]

6 manslaughter . . . when that person recklessly causes the

7 death of another person.” Trial Tr. 1070:17-19. On

8 November 13, 2000, the jury found Mannix guilty of depraved

9 indifference murder. N.Y. Penal Law § 125.25(2). 3

10 Mannix appealed, and the appellate division affirmed

11 his conviction. People v. Mannix, 756 N.Y.S.2d 33, 34 (1st

12 Dep’t 2003). The appellate division held that, “[c]ontrary

13 to [Mannix’s] contention, Penal Law § 125.25(2), which

14 defines ‘depraved indifference’ murder, is not

15 unconstitutionally vague.” Id. The court stated that

16 depraved indifference murder and reckless manslaughter were

17 “separate crimes, both facially and as interpreted.” Id.

18 The appellate division further noted that, “[i]n any event,

19 the Supreme Court of the United States ‘has long recognized
10

1 that when an act violates more than one criminal statute,

2 the [g]overnment may prosecute under either so long as it

3 does not discriminate against any class of defendants.’” 

4 Id. (quoting United States v. Batchelder, 442 U.S. 114, 123-

5 24 (1979)). The appellate division also found that “[t]he

6 verdict convicting [Mannix] of depraved indifference murder

7 was based on legally sufficient evidence and was not against

8 the weight of the evidence.” Id. The New York Court of

9 Appeals denied Mannix’s application for leave to appeal. 

10 People v. Mannix, 100 N.Y.2d 622 (2003).

11 Mannix filed a pro se petition for a writ of habeas

12 corpus in the Southern District of New York. Mannix, 390 F.

13 Supp. 2d at 282. Judge Casey referred the matter to

14 Magistrate Judge Gorenstein, to whom Mannix argued that “the

15 difference between depraved indifference murder and reckless

16 manslaughter is no longer ‘well understood’ in New York,”

17 that the depraved indifference murder statute “does not

18 prohibit the proscribed conduct ‘with sufficient

19 definiteness,’” and that, therefore, the depraved

20 indifference murder statute is unconstitutionally vague. 

21 Id. at 288. Mannix also maintained that his conviction for

22 depraved indifference murder was not supported by legally
11

1 sufficient evidence. Id. at 293-295.

2 In a report and recommendation dated May 25, 2005, the

3 magistrate rejected Mannix’s argument that the alleged

4 congruence between the depraved indifference murder and the

5 reckless manslaughter statutes rendered his conviction

6 constitutionally infirm. Id. at 292. The judge reasoned

7 that, “[e]ven assuming arguendo that there is no distinction

8 at all between the conduct covered by the depraved

9 indifference murder statute and the conduct covered by the

10 manslaughter statute, there is no clearly established

11 federal constitutional principles permitting [the district

12 court] to grant habeas relief.” Id. The court further held

13 that the appellate division’s conclusion that legally

14 sufficient evidence supported Mannix’s conviction was “not

15 an unreasonable application of Supreme Court law.” Id. at

16 295. Accordingly, the magistrate recommended that the

17 petition for habeas corpus be denied.

18 The magistrate judge provided notice to the parties

19 that they had ten days during which they could object to his

20 report. Id. at 296; see also id. at 282. No objections

21 were filed within that period. The district court, finding

22 no clear error, accepted the magistrate’s report and
 Mannix raised a number of other issues before the 4

appellate division and before the district court. We do not

12

1 recommendation. Id. at 282.

2 On May 18, 2007, Mannix filed a motion for a

3 certificate of appealability in this Court, and included a

4 document entitled “Petitioner’s Objections to the

5 Magistrate’s Report and Recommendation.” The document, and

6 an accompanying certificate of service — never docketed in

7 the district court — are dated June 3, 2005. Had Mannix’s

8 objections been received by the district court on that date,

9 they would have been considered timely.

10 On July 9, 2009, a panel of this Court granted, in

11 part, Mannix’s motion for a certificate of appealability and

12 certified three questions for appeal: (1) whether the

13 depraved indifference murder statute was unconstitutionally

14 vague at the time petitioner’s conviction became final; (2)

15 whether petitioner properly objected to the magistrate’s

16 report when the district court did not refer to his

17 objections, but where petitioner attached a copy of his

18 objections to his certificate of appealability papers; and

19 (3) whether petitioner’s conviction rests on legally

20 sufficient evidence.4
discuss these issues here; we address only the issues on

which our Court granted a certificate of appealability.

13

1 B. Petitioner Jermaine Archer

2 On July 20 and 21, 1997, Petitioner Jermaine Archer had

3 several brief street confrontations with Carlos Bethune and

4 Reynaldo Niles. On the night of July 21, 1997, Bethune was

5 driving his car with Reynaldo’s brother, Patrick Niles, in

6 the passenger seat. At one point, Bethune slowed down and

7 noticed a van to the right of his car. According to

8 Bethune, Archer then emerged from around the van, pulled a

9 gun from his waist, and fired three or four shots, in quick

10 succession, into Bethune’s car before Bethune could drive

11 away. One of these shots struck Patrick Niles in the back

12 of the neck and killed him. Archer v. Fischer, No. 05 Civ.

13 4990 (JFB), 2009 WL 1011591, at *1-2 (E.D.N.Y. Apr. 13,

14 2009).

15 Archer was charged with intentional murder, N.Y. Penal

16 Law § 125.25(1), depraved indifference murder, id. §

17 125.25(2), manslaughter in the first degree, id. §

18 125.20(1), and manslaughter in the second degree, also known

19 as reckless manslaughter, id. § 125.15(1). Archer was tried

20 before a jury. At the close of the trial, the judge
14

1 instructed the jury that it should consider the intentional

2 murder charge first, and consider the offense of depraved

3 indifference murder only if it found petitioner Archer not

4 guilty of intentional murder. Similarly, the judge

5 instructed that the jury should consider the charge of

6 manslaughter in the first degree only if it concluded Archer

7 was not guilty of depraved indifference murder, and it

8 should consider the reckless manslaughter charge last and

9 only if it found Archer not guilty of all previously

10 considered charges.

11 With respect to the depraved indifference murder

12 charge, the court explained:

13 A person is guilty of depraved

14 indifference murder in the second degree

15 when, under circumstances evincing a

16 depraved indifference to human life, he

17 recklessly creates a grave and

18 unjustifiable risk of death to another

19 person and thereby causes that person’s

20 death. 

21 A grave risk of death means a very

22 substantial, very great risk of death. A

23 person acts recklessly regarding a grave

24 and unjustifiable risk of death when he is

25 aware of and consciously disregards a very

26 substantial and unjustifiable risk that

27 death will result from his actions. The

28 risk must be of such [a] nature and degree

29 that the defendant’s disregard of it was a

30 gross deviation, meaning a very great,

31 flagrant, obvious departure from the
15

1 standard of conduct that a reasonable

2 person would have followed in the same

3 situation. 

4 Although this charge is called murder,

5 it does not require proof of the

6 defendant’s intent to kill or even intent

7 to murder anyone. In depraved indifference

8 murder, taking the place of an intent to

9 kill are the defendant’s creation of a very

10 great and unjustifiable risk of death, plus

11 his reckless state of mind regarding that

12 risk, plus circumstances evincing a

13 depraved indifference to human life.

14

15 Trial Tr. 516:2-25, 517:1. In further explicating the

16 meaning of depraved indifference, the court stated that “it

17 relates to the dangerous circumstances alleged to have been

18 created by the defendant.” Trial Tr. 518:24-25, 519:1. The

19 court noted that “[a] depraved indifference to human life is

20 much more serious and blameworthy than conduct that is

21 merely reckless, because the conduct is much more

22 dangerous.” Trial Tr. 519:2-5. The court instructed:

23 Circumstances evincing a depraved

24 indifference to human life exist[] when, in

25 the judgment of the jury, beyond a

26 reasonable doubt, the defendant’s conduct,

27 beyond being reckless, was so highly and

28 immediately dangerous to life and so

29 wanton, without regard for or caring about

30 the results to human life, and deficient in

31 moral sense or concern, that it warrants

32 the same level of criminal blame as the law

33 imposes on someone who intentionally causes

34 a person’s death even though there is no

35 intent to kill.
 Petitioner Archer was sentenced to an indeterminate 5

term of imprisonment of twenty-two years to life for the

16

1 Trial Tr. 519:5-14. Later in the instructions provided to

2 the jury, the court explained the charge of reckless

3 manslaughter. The judge stated:

4 A person is guilty of manslaughter in

5 the second degree when he recklessly causes

6 another person’s death. A person acts

7 recklessly regarding someone’s death in

8 manslaughter in the second degree when he

9 is aware of and consciously disregards a

10 substantial and unjustifiable risk of death

11 from his actions, and the risk is of such

12 nature and degree that disregarding it is

13 a gross deviation from the standard of

14 conduct of a reasonable person. 

15

16 Trial Tr. 521:24-25, 522:1-7. The court then explicitly

17 contrasted reckless manslaughter with depraved indifference

18 murder. The court acknowledged that the crimes might be

19 viewed as “similar” in that they both required proof that

20 the defendant recklessly caused someone’s death. Trial Tr.

21 522:14. However, the court made it clear to the jury that

22 the crimes are distinct because “manslaughter in the second

23 degree does not require proof of circumstances evincing a

24 depraved indifference . . . to human life.” Trial Tr.

25 522:17-19.

26 Archer was convicted of depraved indifference murder.5
depraved indifference murder charge.

 A complicated procedural history ensued between the 6

time of Archer’s conviction and the affirmance by the

appellate division. These proceedings are summarized in the

opinion of the district court. Archer, 2009 WL 1011591, at

*4-5. Because this procedural history does not bear on our

decision, there is no need to recite it here.

 New York Criminal Procedure Law § 440.10(1) provides: 7

At any time after the entry of a judgment,

the court in which it was entered may, upon

motion of the defendant, vacate such

judgment upon the ground that: (h) The

judgment was obtained in violation of a

right of the defendant under the

constitution of [New York] [S]tate or of

the United States.

N.Y. Crim. Proc. Law § 440.10(1)(h).

17

1 N.Y. Penal Law § 125.25(2). Archer appealed his conviction

2 to the appellate division. While his appeal to the 6

3 appellate division was pending, Archer made a motion in

4 state supreme court, pursuant to New York Criminal Procedure

5 Law § 440.10, to vacate the judgment of conviction. One of 7

6 the grounds for this motion was Archer’s contention that the

7 depraved indifference murder statute was unconstitutionally

8 vague. The state trial court denied his § 440.10 motion,

9 holding that the depraved indifference murder statute was

10 not unconstitutionally vague. Petitioner applied for leave

11 to appeal the denial of his § 440.10 motion; this motion was
 Petitioner also moved in the appellate division for a 8

writ of error coram nobis, which was denied. People v.

Archer, 795 N.Y.S.2d 899 (2d Dep’t 2005). He applied for

leave to appeal this denial to the New York Court of

Appeals, which was also denied. People v. Archer, 5 N.Y.3d

803 (2005).

18

1 denied by the appellate division. On October 25, 2004, the

2 appellate division affirmed Archer’s conviction. People v.

3 Archer, 784 N.Y.S.2d 567, 567 (2d Dep’t 2004). Archer 8

4 sought leave to appeal to the New York Court of Appeals,

5 which was denied. People v. Archer, 4 N.Y.3d 741 (2004).

6 Archer then petitioned for a writ of habeas corpus in

7 the Eastern District of New York. Archer, 2009 WL 1011591,

8 at *5. The court held that Archer’s vagueness challenge to

9 New York’s depraved indifference murder statute was without

10 merit. Id. at *24-26. The court concluded that the

11 “statute gives the accused fair warning that his conduct was

12 criminal and proscribed since ordinary people would

13 understand that shooting at someone at short range in the

14 vicinity of others would be criminal and put them at risk of

15 a homicide conviction.” Id. at *25 (internal quotation

16 marks omitted). The court further reasoned that the

17 language of the statute was adequate to prevent arbitrary

18 and discriminatory enforcement. Id. at *26. The district
 As is the case with Mannix, Archer raised numerous 9

other issues before the state and district courts. We limit

our discussion to the issue on which we granted a

certificate of appealability.

19

1 judge determined that “the jury instructions administered in

2 this case gave the jury sufficient guidelines to prevent

3 arbitrary or discriminatory application of the statute.” 

4 Id.

5 On October 13, 2009, this Court granted, in part,

6 Archer’s motion for a certificate of appealability. The

7 certificate issued by this Court was limited to the issue of

8 whether New York’s depraved indifference murder statute was

9 unconstitutionally vague as compared to New York’s reckless

10 manslaughter statute at the time Archer’s conviction became

11 final.9

12 II. STANDARD OF REVIEW

13 The Antiterrorism and Effective Death Penalty Act of

14 1996 (“AEDPA”) provides that persons in state custody

15 because of a state court conviction may petition for federal

16 habeas corpus relief if their custody is “in violation of

17 the Constitution or laws or treaties of the United
 Before a federal court can consider a petition for a 10

writ of habeas corpus, the petitioner must have exhausted

all available state judicial remedies. 28 U.S.C. §

2254(b)(1)(A). Exhaustion requires that a petitioner

“fairly present federal claims to the state courts in order

to give the State the opportunity to pass upon and correct

alleged violations of its prisoners’ federal rights.” 

Duncan v. Henry, 513 U.S. 364, 365 (1995) (internal

quotation marks and brackets omitted). “[I]t is not

sufficient merely that the federal habeas applicant has been

through the state courts.” Picard v. Connor, 404 U.S. 270,

275-76 (1971). A claim is regarded as “procedurally

defaulted for the purposes of federal habeas review where

the petitioner failed to exhaust state remedies and the

court to which the petitioner would be required to present

his claims in order to meet the exhaustion requirement would

now find the claims procedurally barred.” Reyes v. Keane,

118 F.3d 136, 140 (2d Cir. 1997) (internal quotation marks

and emphasis omitted).

 Moreover, the state courts’ factual findings are 11

presumed correct unless petitioners rebut the presumption

with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

20

1 States.” 28 U.S.C. § 2254(a); see Hawkins v. Costello,

10

2 460 F.3d 238, 242 (2d Cir. 2006). We review de novo the

3 district courts’ decisions to deny the petitions for habeas

4 corpus. Jenkins v. Artuz, 294 F.3d 284, 290 (2d Cir. 2002). 

5 However, we review the district courts’ factual findings

6 only for clear error. Id. 11

7 In order to obtain relief, the petitioners must show

8 that the resolutions of the merits of their claims in the

9 state courts were “contrary to, or involved an unreasonable
 For purposes of AEDPA, a claim is deemed to have been 12

“adjudicated on the merits,” 28 U.S.C. § 2254(d), if the

state court rendered “a decision finally resolving the

[petitioner’s] claim[], with res judicata effect, that is

based on the substance of the claim advanced, rather than on

a procedural, or other, ground.” Sellan v. Kuhlman, 261

F.3d 303, 311 (2d Cir. 2001). A state court decision will

be deemed an adjudication on the merits as long as “there is

nothing in its decision to indicate that the claims were

decided on anything but substantive grounds.” Aparicio v.

Artuz, 269 F.3d 78, 94 (2d Cir. 2001).

21

1 application of, clearly established Federal law, as

2 determined by the Supreme Court of the United States,” or

3 that they were “based on an unreasonable determination of

4 the facts in light of the evidence presented in the State

5 court proceeding[s].” 28 U.S.C. § 2254(d)(1)-(2). A 12

6 decision is contrary to Supreme Court precedent if the state

7 court “applie[d] a rule that contradicts” that precedent, or

8 reached a different result than the Supreme Court on facts

9 that are “materially indistinguishable.” Williams v.

10 Taylor, 529 U.S. 362, 405-06 (2000). We are charged with

11 evaluating whether the states courts’ applications of

12 clearly established federal law were “objectively

13 unreasonable.” Id. at 409. Applying these standards, we

14 conclude that neither Mannix nor Archer is entitled to

15 relief from his state court conviction.
22

1 III. DISCUSSION

2 A. Threshold Procedural Requirements

3 Respondents submit that we should not address the

4 merits of petitioners’ vagueness challenges to New York’s

5 depraved indifference murder statute for procedural reasons. 

6 As to Mannix, respondent argues that he waived his habeas

7 claims by failing to file timely objections to the

8 magistrate judge’s report and recommendation in the district

9 court. See Small v. Sec’y of Health & Human Servs., 892

10 F.2d 15, 16 (2d Cir. 1989); see also Thomas v. Arn, 474 U.S.

11 140, 155 (1985). Mannix concedes that his objections to the

12 magistrate’s report were never received by the district

13 court. And, it is clear from the record that the district

14 court was not on notice of Mannix’s objections at the time

15 it accepted the report and recommendation of the magistrate

16 judge. Mannix, 390 F. Supp. 2d at 282 (noting that “[n]o

17 objections ha[d] been filed”). Nonetheless, Mannix contends

18 that his objections were timely filed under the prison

19 mailbox rule because he delivered them to prison officials

20 on June 3, 2005. See Houston v. Lack, 487 U.S. 266, 270

21 (1988); Fed. R. App. P. 4(c)(1). 

22 We need not specifically decide whether the prison
23

1 mailbox rule applies in the context of objections to a

2 report and recommendation, cf. Noble v. Kelly, 246 F.3d 93,

3 97 (2d Cir. 2001), or whether Mannix’s objections were

4 waived through lack of diligence on his part, compare Huizar

5 v. Carey, 273 F.3d 1220, 1223 (9th Cir. 2001), with Allen v.

6 Culliver, 471 F.3d 1196, 1198 (11th Cir. 2006), because the

7 waiver rule is “nonjurisdictional,” Spence v.

8 Superintendent, Great Meadow Corr. Facility, 219 F.3d 162,

9 174 (2d Cir. 2000), and we conclude, in any event, that

10 Mannix’s claims fail on the merits. 

11 As to Archer, respondent asserts that his claim should

12 be deemed exhausted and procedurally defaulted. See, e.g.,

13 Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Archer

14 maintains that the state waived its procedural default

15 defense by failing to raise it in the district court. 

16 Before AEDPA, it was well established that “procedural

17 default is normally a defense that the State is obligated to

18 raise and preserve if it is not to lose the right to assert

19 the defense thereafter.” Trest v. Cain, 522 U.S. 87, 89

20 (1997) (internal quotation marks and brackets omitted). 

21 Under AEDPA, however, “[a] State shall not be deemed to have

22 waived the exhaustion requirement or be estopped from
24

1 reliance upon the requirement unless the State, through

2 counsel, expressly waives the requirement.” 28 U.S.C.

3 § 2254(b)(3); see also Lurie v. Wittner, 228 F.3d 113, 123

4 (2d Cir. 2000). 

5 Again, we need not decide whether AEDPA disfavors a

6 state’s waiver of its procedural default defense when that

7 default is based on petitioner’s failure properly to

8 exhaust, compare Franklin v. Johnson, 290 F.3d 1223, 1231

9 (9th Cir. 2002), with McNair v. Campbell, 416 F.3d 1291,

10 1305-06 & n.13 (11th Cir. 2005), because, Archer’s claim,

11 like Mannix’s, fails in any event on the merits, see 28

12 U.S.C. § 2254(b)(2); see also Zarvela v. Artuz, 364 F.3d

13 415, 417 (2d Cir. 2004).

14 B. Petitioners’ Vagueness Challenges to their Convictions

15 for Depraved Indifference Murder

16

17 Both Mannix and Archer contend that their convictions

18 for depraved indifference murder should be vacated on the

19 ground that the statute under which they were convicted was

20 void for vagueness. Petitioners cannot demonstrate that the

21 state courts unreasonably applied clearly established

22 federal law in concluding that New York’s depraved

23 indifference murder statute was not void for vagueness as
25

1 applied to them. 28 U.S.C. § 2254(d).

2 i. The Vagueness Doctrine

3 The void-for-vagueness doctrine derives from the

4 constitutional guarantee of due process, which requires that

5 a penal statute define a criminal offense “‘[1] with

6 sufficient definiteness that ordinary people can understand

7 what conduct is prohibited and [2] in a manner that does not

8 encourage arbitrary and discriminatory enforcement.’”

9 Skilling v. United States, 130 S. Ct. 2896, 2927-28 (2010)

10 (alterations in original) (quoting Kolender v. Lawson, 461

11 U.S. 352, 357 (1983)). The “touchstone” of the notice prong

12 “is whether the statute, either standing alone or as

13 construed, made it reasonably clear at the relevant time

14 that the defendant’s conduct was criminal.” United States

15 v. Lanier, 520 U.S. 259, 267 (1997). The arbitrary

16 enforcement prong requires that a statute give “minimal

17 guidelines” to law enforcement authorities, so as not to

18 “permit a standardless sweep that allows policemen,

19 prosecutors, and juries to pursue their personal

20 predilections.” Kolender, 461 U.S. at 358 (internal

21 quotation marks and brackets omitted). Although a law must

22 provide “explicit standards,” it “need not achieve
26

1 meticulous specificity, which would come at the cost of

2 flexibility and reasonable breadth.” Dickerson v.

3 Napolitano, 604 F.3d 732, 747 (2d Cir. 2010) (internal

4 quotation marks omitted). 

5 The Supreme Court has made it clear that when the law

6 “unambiguously specif[ies] the activity proscribed,” the

7 fact that this proscribed conduct may violate more than one

8 statute does not render the statute void for vagueness.

9 United States v. Batchelder, 442 U.S. 114, 123 (1979). To

10 the contrary, “when an act violates more than one criminal

11 statute, the [g]overnment may prosecute under either so long

12 as it does not discriminate against any class of

13 defendants.” Id. at 123-24 .

14 When, as here, the challenged law does not threaten

15 First Amendment interests, we generally evaluate a vagueness

16 claim only as applied to the facts of the particular case. 

17 See Maynard v. Cartwright, 486 U.S. 356, 361 (1988); United

18 States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993); see also

19 Dickerson, 604 F.3d at 743-45. Because “[a] plaintiff who

20 engages in some conduct that is clearly proscribed cannot

21 complain of the vagueness of the law as applied to the

22 conduct of others,” Vill. of Hoffman Estates v. Flipside,
27

1 Hoffman Estates, Inc., 455 U.S. 489, 495 (1982), we will

2 uphold a statute against an as-applied challenge if “‘the

3 particular enforcement at issue [is] consistent with the

4 core concerns underlying the [statute],’” Dickerson, 604

5 F.3d at 748 (alterations in original) (quoting Farrell v.

6 Burke, 449 F.3d 470, 493 (2d Cir. 2006)). Put another way,

7 “[o]ne to whose conduct a statute clearly applies may not

8 successfully challenge it for vagueness.” Parker v. Levy,

9 417 U.S. 733, 756 (1974). 

10 ii. New York’s Depraved Indifference Murder Statute

11 New York’s depraved indifference murder statute

12 provides that a person is guilty of murder in the second

13 degree when: “Under circumstances evincing a depraved

14 indifference to human life, he recklessly engages in conduct

15 which creates a grave risk of death to another person, and

16 thereby causes the death of another person.” N.Y. Penal Law

17 § 125.25(2). At the times of petitioners’ trials, and at

18 the times that each of their convictions became final,

19 recklessness was the required mental state for depraved

20 indifference murder. People v. Register, 60 N.Y.2d 270, 274

21 (1983). Depravity and indifference were assessed by the

22 jury, based on its review of the circumstances of the crime. 
28

1 Id. at 274-75. In other words, a jury was required to

2 evaluate the facts attendant to the crime, and the

3 defendant’s behavior in committing the crime, to make a

4 determination as to whether those facts and behavior evinced

5 a depraved indifference to human life. As the New York

6 Court of Appeals explained, it was within the jury’s

7 province “to make a qualitative judgment whether defendant’s

8 act was of such gravity that it placed the crime upon the

9 same level as the taking of life by premeditated design. It

10 had to determine from the evidence if defendant’s conduct,

11 though reckless, was equal in blameworthiness to intentional

12 murder.” Id. 

13 During the relevant time period, “depraved

14 indifference” referred to “objective circumstances”

15 surrounding the offenses committed. Id. at 276. And, the

16 definition of depraved indifference murder was “well

17 understood.” Id. at 279 (internal quotation marks

18 ommitted); see also People v. Johnson, 87 N.Y.2d 357, 361

19 (1996); People v. Cole, 85 N.Y.2d 990, 992 (1995). In

20 Register, which governs petitioners’ appeals, the New York

21 Court of Appeals explained that depraved indifference murder

22 “is not and never has been considered as a substitute for
29

1 intentional homicide.” 60 N.Y.2d at 279. Moreover, it

2 reasoned, depraved indifference murder “is distinguishable

3 from manslaughter . . . by the objective circumstances in

4 which the act occurs.” Id. at 278. 

5 Subsequent to petitioners’ convictions becoming final,

6 this interpretation of the depraved indifference murder

7 statute changed. The New York Court of Appeals overturned

8 its prior precedent and held that “depraved indifference to

9 human life is a culpable mental state.” People v. Feingold,

10 7 N.Y.3d 288, 294 (2006). As now understood by the New York

11 Court of Appeals, “‘a one-on-one shooting or knifing (or

12 similar killing) can almost never qualify as depraved

13 indifference murder.’” Policano v. Herbert, 7 N.Y.3d 588,

14 601 (2006) (quoting People v. Payne, 3 N.Y.3d 266, 272

15 (2004)). But see People v. Sanchez, 98 N.Y.2d 373, 383

16 (2002) (observing that requirements that conduct causing

17 death be “aimed at no one in particular” and must “endanger

18 indiscriminately the lives of many” were “entirely obsolete”

19 under then-existing New York law (internal quotation marks 

20 and alteration omitted)). Contrary to the assertions of

21 petitioners, this change in construction is of little import

22 in evaluating these petitions for habeas corpus relief based
30

1 on vagueness, for on habeas review, we must look to New York

2 law as it existed when Mannix and Archer’s convictions

3 became final. See Henry v. Ricks, 578 F.3d 134, 141 (2d

4 Cir. 2009); see also Policano v. Herbert, 453 F.3d 79, 83

5 (2d. Cir. 2006)(Raggi, J., dissenting from denial of

6 rehearing en banc).

7 iii. Petitioners’ Vagueness Challenges Lack Merit

8 We have no difficulty concluding that Mannix and Archer

9 were both on notice that their conduct — shooting into an

10 enclosed space when each petitioner knew people were inside

11 — was criminal. Grayned v. City of Rockford, 408 U.S. 104,

12 108 (1972). It cannot be said that the depraved

13 indifference murder statute, as interpreted at the relevant

14 time, could “trap the innocent by not providing fair

15 warning.” Id. And, it certainly cannot be said that there

16 was any risk that either man was unaware that his conduct

17 was proscribed, such that their vagueness challenges would

18 survive as-applied review. See Vill. of Hoffman Estates,

19 455 U.S. at 495; accord Nadi, 996 F.2d at 550.

20 Through the time petitioners’ convictions became final,

21 New York courts consistently held that firing into a crowd

22 or enclosed space is a “quintessential” case of depraved
31

1 indifference murder. See People v. Suarez, 6 N.Y.3d 202,

2 214 (2005) (observing that “[q]uintessential examples” of

3 depraved indifference murder include “firing into a crowd”

4 (citing People v. Jernatowski, 238 N.Y. 188, 192 (1924)

5 (upholding depraved indifference murder conviction where

6 “defendant fired two or more shots into the house where he

7 knew there were human beings”))); accord Payne, 3 N.Y.3d at

8 271; People v. Gonzalez, 1 N.Y.3d 464, 467 (2004); see also

9 People v. Brown, 575 N.Y.S.2d 460, 460 (1st Dep’t 1991)

10 (upholding depraved indifference murder conviction where

11 defendant fired shot through closed door). 

12 Relying on two decisions from the Southern District of

13 New York, Mannix and Archer argue that the depraved

14 indifference murder statute, as applied to them, encouraged

15 arbitrary enforcement because their conduct was

16 indistinguishable from conduct proscribed by the reckless

17 manslaughter statute. See St. Helen, 2003 WL 25719647, at

18 *8; Jones, 2002 WL 33985141, at *5. At the outset, we

19 reject the premise of petitioners’ argument. Under

20 Register, depraved indifference murder was defined as

21 distinct from, and requiring an element in addition to, the

22 lesser included offense of reckless manslaughter. See
32

1 Sanchez, 98 N.Y.2d at 380 (“Register requires a

2 significantly heightened recklessness, distinguishing it

3 from manslaughter . . . .”); see also Payne, 3 N.Y.3d at 271

4 (“[T]he reckless conduct must be ‘so wanton, so deficient in

5 a moral sense of concern, so devoid of regard for the life

6 or lives of others, and so blameworthy as to warrant the

7 same criminal liability as that which the law imposes upon a

8 person who intentionally causes the death of another.’”

9 (quoting Gonzalez, 1 N.Y.3d at 469)); Register, 60 N.Y.2d at

10 276 (holding that “the depraved mind murder statute requires

11 in addition [to reckless manslaughter] not only that the

12 conduct which results in death present a grave risk of death

13 but that it also occur ‘[u]nder circumstances evincing a

14 depraved indifference to human life’” and construing the

15 latter as an “additional requirement” (second alteration in

16 original) (quoting N.Y. Penal Law § 125.25(2))). 

17 “[I]t is not the province of a federal habeas court to

18 reexamine state-court determinations on state-law

19 questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 

20 “[S]tate courts are the ultimate expositors of state law.”

21 Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). As we are

22 bound by the New York Court of Appeals’ construction of
33

1 state law at the time petitioners’ convictions became final,

2 we conclude that the depraved indifference murder and

3 reckless manslaughter statutes define distinct offenses.

4 Even if Mannix and Archer were right that they could

5 have properly been convicted under either statute, their

6 vagueness claims would still fail. As the district courts

7 correctly recognized, no clearly established constitutional

8 prohibition of statutory vagueness is violated when two

9 statutes proscribe the same conduct and a defendant is

10 charged under the one subjecting him to greater punishment. 

11 Quite to the contrary, the Supreme Court has held that even

12 if two statutes overlap and have “identical standards of

13 proof,” this, in and of itself, would not render them void

14 for vagueness. Batchelder, 442 U.S. at 124. Rather, “when

15 an act violates more than one criminal statute, the

16 [g]overnment may prosecute under either so long as it does

17 not discriminate against any class of defendants,” an equal

18 protection, not due process, concern. Id. at 123-24. 

19 Petitioners raise no such discrimination claim here. Thus,

20 we conclude that their vagueness arguments are foreclosed by

21 Batchelder's clear holding that “a defendant has no

22 constitutional right to elect which of two applicable . . .
 The Supreme Court has never suggested that the 13

classic example of overlapping crimes – greater and lesser

included offenses - raises any due process vagueness

concerns. Rather, it is the Double Jeopardy Clause that

protects a defendant from conviction of both such crimes. 

See Brown v. Ohio, 432 U.S. 161, 168-69 (1977) (treating

greater and lesser offenses as the same for purposes of

double jeopardy); Aparicio v. Artuz, 269 F.3d 78, 96 (2d

Cir. 2001) (holding that double jeopardy proscribes multiple

prosecutions not only for “same offense” but “when one

offense is a lesser included offense of the other”).

34

1 statutes shall be the basis of his indictment and

2 prosecution.” Id. at 125; see also United States v. Carmel,

3 548 F.3d 571, 579 (7th Cir. 2008) (stating that “Congress

4 may lawfully punish the same action under two separate

5 statutes without running afoul of the Due Process Clause”);

6 United States v. Malik, 385 F.3d 758, 760 (7th Cir. 2004)

7 (concluding that “[w]hen the same acts violate multiple

8 laws, the prosecutor is free to choose the one with the

9 highest sentence”).13

10 Petitioners nevertheless submit that when the New York

11 Court of Appeals overruled Register, and declared “depraved

12 indifference” to be a culpable mental state in Feingold, the

13 court conceded that the interpretation of the depraved

14 indifference murder statute was unconstitutionally vague at

15 the time their convictions were finalized. As applied to
35

1 these habeas petitioners, the change in the interpretation

2 of the statute warrants no such conclusion. Indeed, this

3 change — which does not apply retroactively, see Henry, 578

4 F.3d at 139-41 — neither diminished the notice given to

5 petitioners that their conduct was proscribed by New York

6 law nor authorized arbitrary enforcement of the depraved

7 indifference statute, see generally Farrell, 449 F.3d at

8 484-85. Moreover, although we are of the view that the

9 meaning of New York’s depraved indifference murder statute

10 was clear at the relevant time, it is also true that “some

11 ambiguity in a statute’s meaning is constitutionally

12 tolerable.” United States v. Chestaro, 197 F.3d 600, 605

13 (2d Cir. 1999); accord Grayned, 408 U.S. at 110 (declining

14 to require “mathematical certainty” or “meticulous

15 specificity” for statutes to survive vagueness review). 

16 Even if we were to consider petitioners’ conduct under the

17 law as it now stands, a rational jury could reasonably have

18 found each man guilty of depraved indifference murder. 

19 Shooting into an enclosed space – whether a small bathroom

20 or a car – knowing that people are inside, is conduct that

21 evinces a mental state of depraved indifference to human

22 life. Feingold, 7 N.Y.3d at 294; see also Register, 60
 As we have noted on countless occasions, “we must 14

consider the evidence in the light most favorable to the

prosecution and make all inferences in its favor. Moreover,

petitioner bears a very heavy burden in convincing a federal

habeas court to grant a petition on the grounds of

36

1 N.Y.2d at 282 (Jasen, J., dissenting).

2 Accordingly, we hold that the state courts did not

3 unreasonably apply federal law in concluding (1) that, at

4 the time their convictions became final, petitioners Mannix

5 and Archer were on notice that their shootings were 

6 proscribed by law; and (2) that the depraved indifference

7 murder statute did not encourage arbitrary enforcement. 

8 Petitioners have failed to identify any principle of clearly

9 established federal law suggesting that New York’s depraved

10 indifference murder statute was void for vagueness as

11 applied to their cases. To the contrary, Batchelder compels

12 the conclusion that the state’s decision to charge

13 petitioners for depraved indifference murder, rather than

14 only reckless manslaughter, does not warrant habeas relief.

15

16 C. Legal Sufficiency of the Evidence Supporting Petitioner

17 Mannix’s Conviction

18

19 Mannix’s challenge to the legal sufficiency of the

20 evidence supporting his conviction is plainly without

21 merit. Mannix cannot demonstrate that “no rational trier 14
insufficiency of the evidence.” Fama v. Comm’r of Corr.

Servs., 235 F.3d 804, 811 (2d Cir. 2000)(citation ommitted).

37

1 of fact could have found proof of guilt beyond a reasonable

2 doubt.” Einaugler v. Supreme Court of State of N.J., 109

3 F.3d 836, 839 (2d Cir. 1997) (internal quotation marks

4 omitted). Nor can Mannix rebut — by clear and convincing

5 evidence — our presumption that the state court’s

6 determination of this factual issue was correct. See Leslie

7 v. Artuz, 230 F.3d 25, 31 (2d Cir. 2000). 

8 At trial, the people’s theory was that Mannix was angry

9 at Torruella because he “sucker-punched” him in the face and

10 that, bent on retaliation, he recklessly fired the fatal

11 shot through the bathroom door. As the appellate division

12 found, “[t]he evidence warranted the conclusion that

13 [petitioner] knowingly and deliberately fired a pistol

14 through a door into a small, enclosed space containing the

15 victim and a bystander.” Mannix, 756 N.Y.S.2d at 34. 

16 Mannix bases his sufficiency challenge, in part, on the fact

17 that “no one saw the gun discharge” and no one saw him

18 “point the gun at the door or fire it.” Mannix Br. at 55.

19 However, shortly after he shot Torruella and left the bar,

20 Mannix called the bar, inquired if he had “hit anyone,” and
38

1 when he learned that he had, replied: “good.” Mannix, 756

2 N.Y.S.2d at 34.

3 We agree with the district court that “the evidence was

4 easily sufficient for a jury to conclude that Mannix fired

5 the shot into the ladies’ room recklessly and not

6 accidentally.” Mannix, 390 F. Supp. 2d at 294. Indeed,

7 evidence adduced at trial revealed that the bullet that

8 killed Torruella was fired through the center of the door at

9 chest level. Accordingly, we find that legally sufficient

10 evidence supports Mannix’s conviction. Mannix is not

11 entitled to habeas relief on this basis.

12 IV. CONCLUSION

13 We have considered all of petitioners’ arguments on

14 appeal, and find them to be without merit. Accordingly, the

15 judgments of the United States District Courts for the

16 Southern and Eastern Districts of New York, denying the

17 petitions for writs of habeas corpus, 28 U.S.C. § 2254, are

18 hereby affirmed.