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

3 SUMMARY ORDER

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

5 AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS

6 COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST

7 CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH TH E NOTATION “SUMMARY ORDER”). A

8 PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

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. th

13 PRESENT:

14 JOSEPH M. McLAUGHLIN,

15 ROBERT D. SACK,

16 Circuit Judges,

17 PAUL A. CROTTY,*

18 District Judge.

19 --------------------------------------

20 James E. Pennington,

21 Petitioner-Appellant,

22

23 - v -

24 Floyd Bennett,

25 Respondent-Appellee.

No. 01-2204-pr

26 --------------------------------------

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 unintentionally
3

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 that
4

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

18

19