The Honorable Paul A. Crotty, of the United States * District Court for the Southern District of New York, sitting by designation. 01-2204-pr Pennington v. Bennett

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT

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## SUMMARY ORDER

4 R ULI N GS BY S UM M ARYORD ER DO N OT H AVE PREC EDEN TIALEFF ECT

. C I T AT I ON T O AS UMM A RYORDE R F I L E D ON O R 5 A F T ER JAN U ARY 1, 2007,I S PERM I TTED AN D I S GO VER N ED BY F ED ERAL R U LE O F APP EL LATE P ROCED URE 3 2 .1 AN D T H IS 6 COURT ’ S L O CAL R ULE 32. 1. 1. W HEN CI T I NG A S UM M A RYORDE R I N A DOCUMENT F I L ED WI T H THI S COURT ,APA R T YM U ST 7 CI TE EI TH ER THE F EDE RAL A PPEN D I X OR AN ELECT RON I C DATA BAS E (W I T H T H E NO T AT I O N “ S UM M ARYORD ER ”). A 8 PA RTYCI TI N G A S UM M ARYORD ER M US T S ERVE ACOPYOF I T ON ANY PA RTYN OT REPRES EN TED BY C OU N S EL

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9 At a stated term of the United States Court of Appeals for the 10 Second Circuit, held at the Daniel Patrick Moynihan United States 11 Courthouse, 500 Pearl Street, in the City of New York, on the 12 16 day of April, two thousand ten.

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13 PRESENT: 14 JOSEPH M. McLAUGHLIN, 15 ROBERT D. SACK, 16 Circuit Judges, 17 PAUL A. CROTTY, * 18 District Judge.

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-------------------------------------- 20 James E. Pennington, 21 Petitioner-Appellant, 22 23 - v -

24 Floyd Bennett, 25 Respondent-Appellee. No. 01-2204-pr

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27 Appearing for Appellant: James E. Pennington, pro se, 28 Sonyea, NY.

29 Michael Y. Scudder, Jr. (Su Ji Lee, 30 on the brief), Court Appointed 31 Amicus Curiae, Chicago, IL.In New York, a person is guilty of second-degree * intentional murder when, "[w]ith intent to cause the death of another person, he causes the death of such person or of a third person." N.Y. Penal Law § 125.25(1).

A person is guilty of second-degree depraved indifference murder when, "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." N.Y. Penal Law § 125.25(2).

2 1 Appearing for Respondent: J. Michael Marion (Michael J. 2 Hillery, of counsel), for Frank J. 3 Clark, District Attorney of Erie 4 County, Buffalo, NY.

5 Appeal from a judgment of the United States District Court 6 for the Western District of New York (Bauer, Magistrate Judge).

7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 8 DECREED that the judgment of the district court be, and it hereby 9 is, AFFIRMED.

10 Petitioner-Appellant James E. Pennington appeals pro se from 11 a judgment of the United States District Court for the Western 12 District of New York denying his petition for a writ of habeas 13 corpus pursuant to 28 U.S.C. § 2254. We appointed pro bono 14 counsel as amicus curiae for Pennington to brief, inter alia, 15 whether Pennington's petition was not procedurally barred under 16 the fundamental miscarriage of justice exception. See Murray v. 17 Carrier, 477 U.S. 478 (1986).

18 Amicus counsel argues that Pennington's petition is not 19 procedurally barred under that exception because, in relation to 20 the shooting death of Octavio Duran, a jury impermissibly 21 convicted Pennington of mutually inconsistent offenses: 22 intentional murder, see N.Y. Penal Law § 125.25(1), and depraved 23 indifference murder, see id. § 125.25(2). See People v. * 24 Gallagher, 69 N.Y.2d 525, 529-30, 508 N.E.2d 909, 910 (1987) 25 ("[I]ntentional murder and depraved mind murder[] are 26 inconsistent counts as defined in CPL 300.30(5), because guilt of 27 one necessarily negates guilt of the other. A finding that 28 defendant committed intentional murder by killing his victim with 29 the conscious objective of causing his death precludes the 30 inconsistent finding that defendant at the same time committed 31 depraved mind murder by recklessly and thus unintentionally3 1 killing that same victim under circumstances evincing a depraved 2 indifference to human life.").

3 We review a district court's denial of a writ of habeas 4 corpus de novo. See Cotto v. Herbert, 331 F.3d 217, 229 (2d Cir. 5 2003). Where, as here, a habeas petitioner's claim is 6 procedurally defaulted, a "habeas petitioner may avoid such a 7 default . . . by showing cause for the default and prejudice, or 8 that failure to consider the claim will result in miscarriage of 9 justice, i.e., the petitioner is actually innocent." Sweet v. 10 Bennett, 353 F.3d 135, 141 (2d Cir. 2003); see also Murray v. 11 Carrier, 477 U.S. 478, 496 (1986). Only the latter exception -- 12 fundamental miscarriage of justice -- is relevant here because 13 that is the question on which we granted Pennington's motion for 14 a certificate of appealability. The "fundamental miscarriage of 15 justice exception is 'extremely rare' and should be applied only 16 in 'the extraordinary cases.'" Sweet, 353 F.3d at 142. 17 "'[A]ctual innocence' means factual innocence rather than just 18 legal insufficiency," and so "the question depends on whether it 19 is more likely than not that no reasonable juror would have 20 concluded that [the petitioner] engaged in conduct that meets the 21 required elements of each of the [allegedly inconsistent] 22 charges." Id.

23 We conclude that Pennington's petition is not saved by the 24 fundamental miscarriage of justice exception. Pennington shot 25 Duran three times in succession. Pennington testified that he 26 pulled out his gun while standing on the side of a street, that 27 Duran lunged toward him, and that the gun "went off" without 28 Pennington intending to fire. See Trial Tr. 1088, 1091-92. 29 Duran's wife testified that after Pennington fired the first 30 shot, Duran turned towards her and Pennington shot him two more 31 times. See id. at 725-26.

32 Despite some reservations about treating these three shots 33 as separate acts, we conclude that our decision in Sweet mandates 34 our holding that the fundamental miscarriage of justice exception 35 does not apply here. In Sweet, we confronted a situation where a 36 defendant was found guilty of both first degree manslaughter, an 37 offense requiring intent, and second degree murder, an offense 38 requiring reckless but not intentional conduct, and found that 39 where there was evidence of multiple blows and injuries "the jury 40 could have concluded that this evidence demonstrated a series of 41 intentionally physical injuries, culminating in one final blow 42 that demonstrated the reckless creation of a grave risk of 43 serious physical injury or death," and that the charged offenses 44 were therefore not mutually inconsistent. Sweet, 353 F.3d at 45 142. Similarly a reasonable juror here could have concluded that4 1 at least one of Pennington's three shots was fired recklessly 2 under circumstances evincing a depraved indifference to human 3 life and at least one was fired with intent to kill; for example, 4 a reasonable juror might have concluded that the first shot was 5 fired recklessly under circumstances evincing depraved 6 indifference, based on Pennington's testimony that the gun just 7 "went off," but that the second two shots were fired with intent 8 to kill, based on the evidence that Duran had turned away from 9 Pennington and was shot twice in the back, and that the gun did 10 not have a "hair trigger." See Trial Tr. at 608-11. 11 Accordingly, Pennington has failed to demonstrate the factual 12 innocence required for a claim of actual innocence, and his 13 habeas claims are procedurally barred.

14 For the foregoing reasons, the judgment of the district 15 court is hereby AFFIRMED.

16 FOR THE COURT: 17 Catherine O'Hagan Wolfe , Clerk of the Court

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