Hereinafter, “T6” refers to the trial transcripts dated May 9, 2001. 1

1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

__________________________________________

)

)

MICHAEL SCOTT, )

)

Petitioner, ) 07 Civ. 3395 (KMK)(LMS)

)

- against - )

) REPORT AND

JOSEPH T. SMITH, Superintendent, ) RECOMMENDATION

Shawangunk Correctional Facility, )

)

Respondent. )

__________________________________________)

TO: THE HONORABLE KENNETH M. KARAS, 

UNITED STATES DISTRICT JUDGE 

Petitioner, Michael Scott (“Petitioner”), proceeding pro se, files this petition for a Writ of

Habeas Corpus (the “Petition”) pursuant to 28 U.S.C. § 2254, challenging his conviction under

Westchester County Indictment Number #00-00408 of one count of Murder in the Second

Degree/Depraved Indifference Murder (N.Y. Penal Law § 125.25(2)) and one count of Reckless

Endangerment in the First Degree (N.Y. Penal Law § 120.25). Pet. at 2. On May 9, 2001,

Petitioner was sentenced in the County Court of Westchester County to an indeterminate term of

twenty-two years to life on the murder count and to a consecutive indeterminate term of two and

one-third to seven years on the reckless endangerment count. Aff. in Opp. to Pet. at 5; T6: 19-

20. Petitioner is currently incarcerated at the Clinton Correctional Facility in Dannemora, New

1

York. Notice of Change of Address, Docket #16. 

Petitioner seeks habeas relief on one ground: (1) that Petitioner’s due process rights were

Case 7:07-cv-03395-KMK-LMS Document 30 Filed 06/01/10 Page 1 of 13
Petitioner has not submitted a Memorandum of Law with his habeas petition but simply

2

describes his argument in two paragraphs and, additionally, refers the court to the argument

detailed in his Appellate brief for that same ground.

Hereinafter, “T” refers to the trial transcript dated February 7, 2001. 3

2

violated because his conviction for Depraved Indifference Murder and Reckless Endangerment

was not supported by legally sufficient evidence. Pet. at 5-6; Resp’t Ex. A (Appellate Brief).

2

I. BACKGROUND

A. The Crime

On March 11, 2000, Petitioner and his friend, Lawrence Jemison (“Jemison”) spent part

of the afternoon trying to sell a shotgun to a man at 50 Hawthorne Street. T: 101-2. When that 3

effort failed, Petitioner and Jemison went to the apartment of David Marshall (“Marshall”) so

that Petitioner could retrieve a gun from Marshall. T: 102-3. When Marshall answered the door,

Petitioner demanded that Marshall give him the gun, a Ruger nine millimeter. T: 103. Marshall

said he did not have the gun but that he would make a call to someone to bring it over to the

apartment. Id. When Marshall returned to the door after making the phone call, he saw the

shotgun in Petitioner’s hand and “asked him what was that for.” T: 104. Petitioner again

demanded his gun and Marshall attempted to duck back inside the apartment and shut the door. 

Id. He did not get the door all the way closed and Petitioner began pushing against the door from

the outside. Id. At some point, Marshall stopped pushing against the door from the inside,

Petitioner fell against the door, and the shotgun went off, hitting Marshall in the back of the head. 

Id. 

Jemison then entered the apartment and stood over Marshall’s body. T: 104-5. Jemison

noticed the Ruger nine millimeter lying next to the body, picked it up, put it in the waist of his

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Hereinafter, “T2” refers to the trial transcripts dated February 6, 2001. 4

Hereinafter, “T3” refers to the trial transcripts dated February 13, 2001 and “T4” refers

5

to the trial transcripts dated February 8, 2001.

Petitioner was found Not Guilty on the first count of the indictment, Murder in the 6

Second Degree/Intentional Murder. T5: 1077.

3

pants and exited the apartment. T: 105. At the same time, Petitioner entered the apartment and

went into the living room where Kasheba Marshall (“Kasheba”), the victim’s sister, was with

four young children. T2: 31-32. When Kasheba noticed that Petitioner had a shotgun, she 4

gathered the children on the couch and laid over them to protect them. T2: 32. Petitioner

pointed the shotgun at the head of one of the children and demanded his gun. Id. Kasheba

begged Petitioner to shoot her instead of the child. Id. Petitioner then wandered around the

living room, took five dollars from a table, and left the apartment. T2: 33. Petitioner was

arrested the next day, read his rights, and signed a statement confessing to the murder of David

Marshall. T3: 49; T4: 36-39. Petitioner later contested these facts during his testimony at trial, 5

claiming that Jemison shot David Marshall, and that his confession had been coerced. See

generally T3. 

B. Procedural History

Petitioner was indicted in Westchester County, Indictment #00-00408, for one count of

Murder in the Second Degree/Intentional Murder (N.Y. Penal Law § 125.25(1)), one count of 

Murder in the Second Degree/Depraved Indifference Murder (N.Y. Penal Law § 125.25(2)), and

one count of Reckless Endangerment in the First Degree (N.Y. Penal Law § 120.25). Indictment,

Docket #17. On March 13, 2001, Petitioner was convicted in a jury trial of one count of Murder

in the Second Degree/Depraved Indifference Murder and one count of Reckless Endangerment. 6

Case 7:07-cv-03395-KMK-LMS Document 30 Filed 06/01/10 Page 3 of 13
Hereinafter, “T5” refers to the trial transcript dated March 12, 2001. 7

4

T5: 1077-78. On May, 9, 2001, Petitioner was sentenced to an indeterminate term of twenty-two 7

years to life on the murder count and to a consecutive indeterminate term of two and one-third to

seven years on the reckless endangerment count. Aff. in Opp. to Pet. at 5; T6: 19-20.

On May 11, 2001, Petitioner’s counsel filed a direct appeal to the New York State

Supreme Court of the Appellate Division, Second Department, alleging that: (1) the People had

not proved the elements of Murder in the Second Degree; (2) the guilty verdict went against the

weight of the evidence; (3) the testimony of the child in the case was not properly admitted; and

(4) the sentence was excessive. Resp’t Ex. A (Appellate Brief). By Decision and Order, the

Appellate Division affirmed Petitioner’s conviction, stating specifically that Petitioner’s

“contention that the evidence was legally insufficient to support a conviction of depraved

indifference murder...is unpreserved for appellate review” and that “we [the Appellate Court]

decline to reach it in the exercise of our interest of justice jurisdiction.” People v. Scott, 24

A.D.3d 800 (2d Dept. 2005). Additionally, the court held that Petitioner’s remaining claims were

“unpreserved for appellate review or without merit.” Id. Petitioner then sought leave to appeal

to the New York State Court of Appeals, which was denied on April 19, 2006. People v. Scott, 6

N.Y.3d 852 (2006). On April 5, 2007, Petitioner timely filed this petition for a Writ of Habeas

Corpus and has no other appeals or petitions pending. Pet. at 7-8. 

II. DISCUSSION

A. Standard of Review

“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614,

621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). To be granted a writ of habeas

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corpus from a federal district court, a petitioner must fully and carefully comply with the

provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.

§ 2254. Under the AEDPA, all state remedies must be exhausted before a federal court may

consider a state prisoner’s petition for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1)(A); see

also Picard v. Connor, 404 U.S. 270, 275 (1971). In the interests of comity and expeditious

federal review, “[s]tates should have the first opportunity to address and correct alleged

violations of [a] state prisoner’s federal rights.” See Coleman v. Thompson, 501 U.S. 722, 731

(1991); see also Daye v. Attorney General of the State of New York, 696 F.2d 186, 190-91 (2d

Cir. 1982). The exhaustion requirement of the federal habeas corpus statute is set forth in 28

U.S.C. § 2254(b), (c):

(b) An application for a writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears that

the applicant has exhausted the remedies available in the courts of the State, or that

there is either an absence of available State corrective process or the existence of

circumstances rendering such process ineffective to protect the rights of the prisoner.

(c) An applicant shall not be deemed to have exhausted the remedies available in the

courts of the State, within the meaning of this section, if he has the right under the

law of the State to raise, by any available procedure, the question presented.

28 U.S.C. § 2254(b), (c).

The Second Circuit has adopted a two-stage inquiry to determine whether the exhaustion

doctrine has been satisfied. See Klein v. Harris, 667 F.2d 274, 282 (1981). First, the petitioner

must have “fairly presented” his or her federal constitutional claim to the appropriate state courts. 

Picard v. Connor, 404 U.S. at 275-76. “A claim has been ‘fairly presented’ if the state courts are

apprised of ‘both the factual and the legal premises of the claim [the petitioner] asserts in federal

court.’ ” Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye, 696 F.2d at 191). In

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other words, the claim must have been presented in a way that is “likely to alert the court to [its]

federal nature.” Daye, 696 F.2d at 192. The fair presentation requirement is satisfied if the state

court brief contains phrases, such as “under the Due Process Clause” or “under the Constitution,”

that point to the petitioner’s reliance on the United States Constitution as his or her legal basis for

relief. Klein, 667 F.2d at 282 (internal citations omitted). A claim may be considered

“presented” even if the federal grounds were not explicitly asserted before the state courts if the

petitioner, in asserting his or her claim before the state court, did one of the following: (1) relied

on pertinent federal cases that employ constitutional analysis, (2) relied on pertinent state cases

that apply constitutional analysis in like fact situations, (3) asserted his or her claim in terms so

particular as to call to mind specific constitutionally-protected rights; or (4) alleged a fact pattern

that falls within the mainstream of constitutional litigation. See Daye, 696 F.2d at 186; Irving v.

Reid, 624 F. Supp. 787, 789 (S.D.N.Y. 1985). 

Second, having fairly presented his or her federal constitutional claim to the appropriate

state court and having been denied relief, the petitioner must appeal his or her conviction to the

highest state court. Klein, 667 F.2d at 282. Where a petitioner fails to present his or her federal

constitutional claim to the highest state court, the claim cannot be considered exhausted. Id.

(citing Williams v. Greco, 442 F. Supp. 831, 833 (S.D.N.Y.1977)). There is, however, another

avenue available for exhaustion purposes. A petitioner who has failed to exhaust state remedies

by pursuing a direct appeal may satisfy the exhaustion requirement by utilizing available state

methods for collaterally attacking his or her state conviction. See Klein, 667 F.2d at 282; see

also Johnson v. Metz, 609 F.2d 1052, 1055-56 (2d Cir. 1979) (instructing habeas petitioner who

did not fairly present claim in the course of his direct appeals in New York state courts to

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proceed by filing a motion to vacate judgment pursuant to N.Y. Crim. Proc. Law § 440.10). If

collateral relief is denied, the petitioner may satisfy the exhaustion requirement by employing the

state appellate procedures available for review of such denial. Id. at 282-83. 

Generally, a state prisoner has one year from the date his or her conviction becomes final

to file a habeas petition in federal court. 28 U.S.C. § 2244(d)(1). This limitations period

ordinarily begins to run on “the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). 

The limitations period is tolled while “. . . a properly filed application for State post-conviction

or other collateral review with respect to the pertinent judgment or claim is pending . . . .” 28

U.S.C. § 2244(d)(2). The limitations period may also be equitably tolled if a petitioner can show

that “extraordinary circumstances prevented him [or her] from filing his [or her] petition on

time.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). After a petitioner has met these

threshold requirements, a federal district court generally may hear “an application for a writ of

habeas corpus on behalf of a person in custody pursuant to the judgment of a state court” only if

the petitioner “is in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a). 

B. Petitioner’s Claim

1. Petitioner’s claim that his due process rights were violated because the

evidence was legally insufficient to support a conviction of Depraved

Indifference Murder is procedurally defaulted; additionally, Petitioner’s claim

that his due process rights were violated because the evidence was legally

insufficient to support a conviction of Reckless Endangerment is without merit.

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Petitioner claims that his due process rights were violated because the evidence at trial

was legally insufficient to support a conviction for both Depraved Indifference Murder and

Reckless Endangerment. Pet. at 5-6; Resp’t Ex. A (Appellate Brief) at 6-39. Respondent

contends that, as to the conviction for Depraved Indifference Murder, Petitioner’s claim is

procedurally barred. Resp’t Mem. of Law at 5-8, 10-19. Likewise, Respondent argues that, as to

the conviction for Reckless Endangerment, Petitioner’s claim has not been exhausted, or in the

alternative, is without merit. Resp’t Mem. of Law at 8-9, 20-23.

The Supreme Court held in Coleman v. Thompson, that a federal court may not review a

claim in a habeas petition “when a state court declined to address a prisoner’s federal claim[]

because the prisoner had failed to meet a state procedural requirement.” 501 U.S. 722, 730

(1991). This decision is grounded in the idea that the state has “independent and adequate state

grounds” for such a dismissal and federal courts are ever mindful of the notions of “comity and

federalism.” Harris v. Reed, 489 U.S. 255, 260 (1989); Coleman, 501 U.S. at 730. In other

words, “an adequate and independent finding of a procedural default [by a state court] will bar

federal habeas review of the federal claim.” Harris, 489 U.S. at 262.

Here, the Appellate Division determined that Petitioner’s “contention that the evidence

was legally insufficient to support a conviction of depraved indifference murder...is unpreserved

for appellate review” and that “we [the Appellate Court] decline to reach it in the exercise of our

interest of justice jurisdiction.” People v. Scott, 24 A.D.3d 800 (2d Dept. 2005). Such a

procedural default is an independent and adequate state ground for denial of a claim and,

therefore, precludes a federal court from considering the matter on habeas review. See also

Hughes v. Phillips, 457 F. Supp. 2d 343, 369 (S.D.N.Y 2006)(“[T]he Appellate Division’s

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invocation of the procedural bar was an independent and adequate State ground for denial of

relief that prevents habeas relief...”). However, a Petitioner can overcome such a procedural

default if he or she can show “cause for the procedural default and prejudice attributable thereto”

(Harris, 489 U.S. at 262) or “actual innocence” (Schlup v. Delo, 513 U.S. 298 (1995)). Petitioner

in this case has provided no proof of either cause and prejudice or actual innocence and,

therefore, his claim must be dismissed. 

Petitioner’s claim regarding his conviction on the Reckless Endangerment charge is not

procedurally barred, however, by the Appellate Division’s decision because that decision only

addressed Petitioner’s conviction on the Depraved Indifference Murder charge. Respondent

contends that the claim regarding Reckless Endangerment should be dismissed because Petitioner

failed to raise such a claim in his direct appeal and such a claim would, therefore, be unexhausted

at the state level. Resp’t Mem. of Law at 8. 

Although Petitioner does not categorize it as such, Petitioner did raise what could be

considered an argument regarding the legal sufficiency of the evidence in the second point of his

Appellate Brief. Resp’t Ex. A (Appellate Brief) at 35-39. In this particular point, Petitioner

contends that the verdict went against the weight of the evidence and he details, for both the

Depraved Indifference Murder charge and the Reckless Endangerment charge, why the evidence

in both instances was insufficient to support such a conviction. Id. at 24-39. Because this could

be construed as raising the issue of the sufficiency of the evidence on appeal, this court will treat

the issue as being exhausted and will consider the claim on its merits. Furthermore, AEDPA

states that “an application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the

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State.” 28 U.S.C. § 2254(b)(2). Thus, this court will consider Petitioner’s second claim.

 Generally, whether there was sufficient proof to convict a person of a crime pursuant to

state law is a state issue. United States v. Hon. H. W. Follette, 257 F.Supp. 533, 534 (S.D.N.Y.

1965) (citing Grundler v. State of North Carolina, 283 F.2d 798, 801 (4 Cir. 1960)). Because

th

issues involving the sufficiency of evidence are state issues, they “[do not] rise to constitutional

dimensions.” Griffin v. Martin, 409 F.2d 1300, 1302 (2d Cir.1969). However, evidentiary

deficiencies can rise to the level of a due process violation under the Fourteenth Amendment in

certain instances. Follette, 257 F.Supp. at 534, Grundler, 283 F.2d at 881. It is then that a state

prisoner can seek relief from the federal courts through a habeas corpus petition. Id. In such a

case, the petitioner must prove that given the evidence produced at trial, “ ‘no rational trier of

fact could have found proof of guilt beyond a reasonable doubt.’ ” Fama v. Comm’r of Corr.

Serv., 235 F.3d 804, 811 (2d Cir. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 324, (1979)). 

The reviewing federal court is required to “consider the evidence in the light most favorable to

the prosecution and make all inferences in its favor.” Fama, 235 F.3d at 811, see also Jackson,

443 U.S. at 319; Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir.1996). However, the reviewing

court is not required to determine whether it in fact believes the evidence introduced at trial

established guilt beyond a reasonable doubt. Fama, 235 F.3d at 811. 

Additionally, “the resolution of issues of credibility is exclusively the province of the

jury.” United States v. Shulman, 624 F.2d 384, 388 (2d Cir. 1980). See also United States v.

Taylor, 464 F.2d 240, 245 (2d Cir. 1972)(“[T]he weighing of credibility is for the jury, not the

judge”); United States v. Khan, 53 F.3d 507, 514 (2d Cir. 1995)([T]he credibility of witnesses is

the province of the jury and we simply cannot replace the jury’s credibility determinations with

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11

our own”); Mallette v. Scully, 752 F.2d 26, 31 (2d Cir.1984)(“In making this assessment [of

legal sufficiency of the evidence], the Court must defer to the jury’s determination regarding

conflicting evidence, the weight given to such evidence, the credibility accorded to the testimony

of witnesses, and the inferences drawn from the evidence”). Finally, “the testimony of a single,

uncorroborated eyewitness is generally sufficient to support a conviction.” United States v.

Danzey, 594 F.2d 905, 916 (2d Cir.1979).

The charge of Reckless Endangerment centers around Petitioner’s actions after the

murder, when Petitioner threatened Kasheba and the children with the shotgun. Petitioner asserts

that the testimony of the eyewitness should be disregarded because the witness was ten years old

at the time. Pet. at 6, Resp’t Ex. A (Appellate Brief) at 35-39. As the determination of the

credibility of a witness is solely the province of the jury at trial, this court will not overturn such

a determination upon habeas review. Additionally, Petitioner makes the argument that Jemison

testified that the shotgun was only loaded with one shell which was discharged when Petitioner

fell against the door. Pet. at 6. Hence, Petitioner claims there could not have been a grave risk of

death to anyone in the room, which is an element of Reckless Endangerment, because the gun

was not loaded. Id. Again, the testimony at issue on this point is conflicting, with Jemison

testifying that he loaded the shotgun with “four or five” rounds earlier in the afternoon. T: 101. 

It is credible, then, that the jury believed this testimony and inferred that the gun was loaded at

the time of the incident. Hence, this court will not reassess the jury’s determination on this point. 

Therefore, viewing the evidence in the light most favorable to the prosecution, this court finds

that Petitioner has not carried his burden to prove that “no rational trier of fact could have found

proof of guilt beyond a reasonable doubt” and Petitioner’s claim must be dismissed. Jackson,

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12

443 U.S. at 324. 

CONCLUSION

For the reasons stated above, I conclude, and respectfully recommend that Your Honor

should conclude, that the instant habeas petition should be dismissed. As the petition presents no

questions of substance for appellate review, I conclude, and respectfully recommend, that a

certificate of probable cause should not issue. Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990)

(per curiam); Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir. 1979). I further conclude, and

respectfully recommend, that the Court should certify pursuant to 28 U.S.C. §1915(a) that an

appeal from this order would not be taken in good faith. See Coppedge v. United States, 369

U.S. 438 (1962).

NOTICE

Pursuant to 28 U.S.C. § 636(b)(1), as amended, and Fed. R. Civ. P. 72(b), the parties

shall have fourteen (14) days, plus an additional three (3) days, pursuant to Fed. R. Civ. P. 6(e),

or a total of seventeen (17) working days, see Fed. R. Civ. P. 6(a), from the date hereof, to file

written objections to this Report and Recommendation. Such objections, if any, shall be filed

with the Clerk of the Court, with extra copies delivered to the chambers of The Honorable

Kenneth M. Karas, at the United States District Court, Southern District of New York, United

States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of

the undersigned at the same courthouse.

Failure to file timely objections to this Report and Recommendation will preclude later

appellate review of any order of judgment that will be entered.

Requests for extensions of time to file objections must be made to Judge Karas.

Case 7:07-cv-03395-KMK-LMS Document 30 Filed 06/01/10 Page 12 of 13
d\>,?u_ 

Dated: b@ 1,201 0 

White Plains, IVY 

Res ectfully submitted, A n 

LISA MAR^ SMITH 

United Stat Ma strate Judge 

Southern District of New York 

A copy of the foregoing Report and Recommendation has been sent to the following: 

Honorable Kenneth M. Karas, U.S.D.J. 

300 Quarropas Street 

White Plains, New York 10601 

Michael Scott #01 -A-2906 

Clinton Correctional Facility 

P.O. Box 2002 

Dannemora, New York 12929 

John Sergi, Assistant District Attorney 

Westchester County District Attorney's Office 

I I 1 Dr. Martin Luther King Jr. Blvd. 

White Plains, New York 10601 

Case 7:07-cv-03395-KMK-LMS Document 30 Filed 06/01/10 Page 13 of 13