Brown v. James

23-7864
Brown v. James
In the
United States Court of Appeals
for the Second Circuit
August Term, 2025
No. 23-7864
DARRYL BROWN,
Petitioner-Appellant,
v.
L ETITIA JAMES , IN HER O FFICIAL C APACITY AS A TTORNEY G ENERAL OF
NEW Y ORK, A NTHONY J. A NNUCCI, IN H IS O FFICIAL C APACITY AS THE
A CTING COMMISSIONER FOR THE NEW YORK D EPARTMENT OF
C ORRECTIONS AND C OMMUNITY S UPERVISION, MICHAEL K IRKPATRICK ,
IN H IS O FFICIAL C APACITY AS SUPERINTENDENT OF THE C LINTON
C ORRECTIONAL F ACILITY ,
Respondents-Appellees.
On Appeal from the United States District Court
for the Southern District of New York.
A RGUED: FEBRUARY 6, 2026
DECIDED: MAY 7, 2026
Before: CABRANES , NARDINI, and K AHN, Circuit Judges.

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Petitioner Darryl Brown was convicted in New York Supreme
Court, Bronx County of first-degree manslaughter after he shot and
killed a person during an argument. Over Brown’s objection, the trial
court declined to instruct the jury on the state-law defense of
justification. A divided panel of the First Department vacated
Brown’s conviction on the ground that the instruction should have
been given, but the New York Court of Appeals unanimously
reinstated the conviction. The New York Court of Appeals held that
Brown was the first person in the confrontation to pull out a gun and
thereby threaten the use of deadly force, which made him the initial
aggressor under New York law, and that he was accordingly not
entitled to a justification instruction. Brown sought habeas relief
under 28 U.S.C. § 2254, arguing that the state courts violated his
federal due process rights by denying him an instruction on a defense
to which he was clearly entitled under state law, thereby rendering
his trial fundamentally unfair. The United States District Court for
the Southern District of New York (Vernon S. Broderick, District
Judge) denied habeas relief. The district court agreed with the New
York Court of Appeals that the trial court properly declined to charge
the jury on justification under state law, and that Brown therefore had
not made a predicate showing that would be required to establish a
federal due process violation. We agree, and thus we AFFIRM the
denial of Brown’s petition.
K RISTEN SANTILLO , Gelber & Santillo PPC,
New York, NY, for Petitioner-Appellant.
TAE -H OON C HARLES W ON (David M. Cohn,
on the brief), Assistant District Attorney,

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Bronx County District Attorney’s Office,
Bronx, NY, for Respondent-Appellee.
WILLIAM J. NARDINI, Circuit Judge:
Petitioner-Appellant Darryl Brown was convicted of first-
degree manslaughter in New York Supreme Court, after he shot his
daughter’s boyfriend during an altercation in the lobby of his
apartment building. The New York Court of Appeals ultimately
affirmed the conviction. Brown sought federal habeas relief under 28
U.S.C. § 2254 in the United States District Court for the Southern
District of New York (Vernon S. Broderick, District Judge), claiming
that the trial court violated his federal due process rights by declining
to charge the jury on a justification defense.
The district court denied Brown’s habeas petition, agreeing
with the New York Court of Appeals that the trial evidence did not
warrant a justification charge under state law. Specifically, the district
court agreed that when Brown pulled out a gun during the argument,
he was the first to threaten to use “deadly force.” That made him the
“initial aggressor” under N.Y. Penal Law § 35.15, which took away
his right to argue self-defense. And because the trial court did not
deprive Brown of a defense to which he was entitled under state law,
there could be no due process violation.
We agree with the district court. As an initial matter, we have
no remit on habeas review to second-guess the New York Court of
Appeals’ authoritative construction of N.Y. Penal Law § 35.15, which

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defines the contours of the justification defense. In light of that settled
state law, we discern no error (and hence no possible constitutional
violation) in the New York Court of Appeals’ application of law to the
facts of this case. And even if we had doubts on that score (which we
do not), we could not conclude on this record that the Court of
Appeals unreasonably applied clearly established federal law as
determined by the Supreme Court, or that it made unreasonable
determinations of fact. Accordingly, we AFFIRM the denial of
Brown’s petition.
I. Background
On March 20, 2014, Brown, an off-duty corrections officer, got
into an argument in the lobby of his apartment building with Vonde
Cabbagestalk, his daughter’s boyfriend and the father of her child.
The argument culminated in Brown shooting and killing
Cabbagestalk. The State of New York charged Brown with murder in
the second degree, N.Y. Penal Law § 125.25(1); manslaughter in the
first degree, N.Y. Penal Law § 125.20(1); and criminal use of a firearm
in the first degree, N.Y. Penal Law § 265.09. The case proceeded to
trial in September 2016 in New York Supreme Court, Bronx County.
Based on the evidence presented to the jury, the trial court decided
that Brown was not entitled to a justification instruction under New
York Penal Law § 35.15, and the jury convicted Brown of first-degree
manslaughter. This appeal turns on whether Brown was deprived of
a jury charge to which he was entitled under state law, and if so
whether such a deprivation violated his federal due process rights by
rendering his trial fundamentally unfair.

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A. New York’s Defense of Justification
The New York legislature has statutorily created a justification
defense, which establishes that a person will not be held criminally
responsible for the use of force under certain circumstances. As
relevant here, N.Y. Penal Law § 35.15 provides:
1. A person may, subject to the provisions of
subdivision two, use physical force upon another
person when and to the extent he or she reasonably
believes such to be necessary to defend himself,
herself or a third person from what he or she
reasonably believes to be the use or imminent use of
unlawful physical force by such other person, unless:
(a) The latter’s conduct was provoked by the actor
with intent to cause physical injury to another
person; or
(b) The actor was the initial aggressor; except that
in such case the use of physical force is
nevertheless justifiable if the actor has withdrawn
from the encounter and effectively communicated
such withdrawal to such other person but the
latter persists in continuing the incident by the use
or threatened imminent use of unlawful physical
force . . .
2. A person may not use deadly physical force upon
another person under circumstances specified in
subdivision one unless:

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(a) The actor reasonably believes that such other
person is using or about to use deadly physical
force. Even in such case, however, the actor may
not use deadly physical force if he or she knows
that with complete personal safety, to oneself and
others he or she may avoid the necessity of so
doing by retreating . . . .
A few things emerge about the justification defense from
§ 35.15 and New York case law. For one thing, “[j]ustification in New
York is a defense, not an affirmative defense; therefore, when the
defense is raised on a proper evidentiary record, the People bear the
burden of disproving it beyond a reasonable doubt.” See Jackson v.
Edwards, 404 F.3d 612, 622 (2d Cir. 2005) (internal quotation marks
and citation omitted).
Second, a justification charge is not given automatically in
every case. The trial evidence must warrant it, though the record
must be viewed in the light most favorable to the defendant. See id.
at 622–23. A defendant is entitled to the instruction “‘if on any
reasonable view of the evidence, the fact finder might have decided
that defendant’s actions were justified’” under § 35.15. Id. (quoting
People v. Padgett, 60 N.Y.2d 142, 145 (1983)). “In order to be entitled to
a justification instruction,” a defendant who has used deadly force
“must show both that he subjectively believed that deadly force was
necessary under the circumstances and that a reasonable person in his
situation would have held this belief.” Blazic v. Henderson, 900 F.2d
534, 540 (2d Cir. 1990) (citing People v. Goetz, 68 N.Y.2d 96, 115 (1986)).
The term “deadly physical force” is defined as “physical force which,

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under the circumstances in which it is used, is readily capable of
causing death or other serious physical injury.” N.Y. Penal Law
§ 10.00(11).
Third, even if a defendant makes both the subjective and
objective showings, there are certain circumstances that will
nonetheless make him ineligible for a justification instruction.
Among other things, a defendant cannot be justified in the use of force
if he was the initial aggressor. N.Y. Penal Law § 35.15(1)(b). An initial
aggressor is “the first person who uses, or threatens the imminent use
of, physical force.” CJI2d[NY] Justification: Use of Physical Force in
Defense of a Person, Penal Law § 35.15(1); People v. Brown, 33 N.Y.3d
316, 321 (2019), reargument denied, 33 N.Y.3d 1136 (2019).
The New York Court of Appeals has interpreted § 35.15(1)(b) in
a few ways relevant here. The Court of Appeals has approved a jury
instruction stating that “[t]he actual striking of the first blow or
inflicting of the first wound . . . does not necessarily determine who
was the initial aggressor.” People v. Valentin, 29 N.Y.3d 57, 60 (2017).
Instead, where “mere physical force is employed against a defendant,
and the defendant responds by employing deadly physical force, ‘the
term initial aggressor is properly defined as the first person in the
encounter to use deadly physical force.’” Brown, 33 N.Y.3d at 321
(quoting People v. McWilliams, 852 N.Y.S.2d 523, 524 (4th Dep’t 2008));
id. at 321 n.4 (collecting cases). A person who first threatens the
imminent use of deadly physical force, like a person who first
threatens the use of nondeadly physical force, is likewise deemed to
be an initial aggressor under New York law. See Brown, 33 N.Y.3d at

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322; Valentin, 29 N.Y.3d at 60, 62; see also CJI2d[NY] Justification: Use
of Deadly Physical Force in Defense of a Person, Penal Law § 35.15(2)
(defining initial aggressor as “the first person who uses, or threatens
the imminent use of, deadly physical force”). Where a person is an
initial aggressor, his use of force is justifiable only if he withdrew from
the encounter and effectively communicated his withdrawal to the
other person, but the other person “persists in continuing the incident
by the use or threatened imminent use of unlawful physical force.”
N.Y. Penal Law § 35.15(1)(b).
B. Proceedings at Trial
At Brown’s trial, the jury heard testimony from three witnesses
about the events surrounding the shooting.
Raymond Wolf, a postal worker who was delivering mail at the
time, saw the entire interaction. Wolf testified that shortly before the
shooting, he entered the apartment building and saw three people
talking in the lobby: Brown, Cabbagestalk, and a third person whom
the police were unable to locate for trial, People v. Brown, 71 N.Y.S.3d
422, 425 n.1 (1st Dep’t 2018). Wolf heard Brown tell Cabbagestalk to
stay away from his daughter, and Cabbagestalk answered that Brown
could not tell him where to be. Cabbagestalk began getting in
Brown’s face, and the third person tried to break up the argument,
telling Cabbagestalk to relax. Cabbagestalk proceeded to swing at
Brown’s face, and Brown stepped back. Wolf subsequently saw
Brown holding a gun “at an angle[] [a]t his waist,” Joint App’x at 474–
75, and heard Cabbagestalk say “you going to pull a gun out, you

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better use it” while swiping at Brown’s gun, id. at 473, 482–83. Wolf
heard the gun go off, and Cabbagestalk fell to the ground. When the
shot was fired, according to Wolf, Cabbagestalk was two feet away
from Brown, and Brown was leaning back.
Yvette Flores, who lived on the first floor of the building, saw
the beginning of the argument through the peephole of her apartment
door and, after her sightline was lost when the parties walked away,
continued to hear the altercation. Flores testified that she saw Brown,
his daughter and her baby, and Cabbagestalk standing in front of
Brown’s apartment. Brown and Cabbagestalk walked away and
Flores could not see the rest of the interaction, but she heard
Cabbagestalk and Brown continue to argue. Flores then heard
Brown’s daughter yell “no daddy no,” followed by a loud boom. Id.
at 339.
Another neighbor, Sheila Thomas, witnessed part of the
argument between Brown and Cabbagestalk from outside while
looking through the windows of the lobby door as she prepared to
enter the building with her groceries. Thomas testified that she saw
Brown and Cabbagestalk walking at a slow pace, with Cabbagestalk
following Brown. She could tell they were having a disagreement,
but could not hear what was being said. Thomas testified that when
she saw the men, they were between six and seven feet apart. They
passed out of her view, and then she heard a gunshot.
At the close of these witnesses’ testimony, the trial court
decided that it would not submit the criminal use of a weapon count

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to the jury, and it preliminarily ruled that it would not grant Brown’s
request to instruct the jury on the defense of justification.
After the trial court indicated that it would not give a
justification charge, Brown declined to testify. Defense counsel told
the trial court that Brown would have testified only that he feared for
his life—which would be relevant only if the jury were instructed on
the defense of justification. The defense did, however, call an expert
to testify as to how corrections officers like Brown are trained to use
firearms and deadly force. The expert testified that officers are
trained to draw a weapon if they perceive a threat, even if the person
threatening them is not displaying a weapon. He further testified that
if officers feel that their lives are in jeopardy and their firearm could
be taken and used against them, “that escalates the situation to
enough where we can use deadly lethal force.” Id. at 653.
Following the close of the defense’s case, the trial court
reaffirmed its ruling on justification. The jury deliberated for nine
hours and returned a verdict acquitting Brown of second-degree
murder but finding him guilty of first-degree manslaughter. The
court sentenced Brown to eighteen years in prison.
C. The Direct Appeal
Brown appealed his manslaughter conviction, arguing that the
trial court committed reversible error by failing to charge the jury on
justification. Brown, 71 N.Y.S.3d at 426. A majority of the First
Department agreed, reasoning that the evidence—when viewed in
the light most favorable to Brown as required under New York law—

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supported “a conclusion that [Brown] feared for his life, and
reasonably believed that deadly physical force was necessary to
defend himself against Cabbagestalk’s imminent use of deadly
physical force.” Id. at 427. In its view, Wolf’s testimony “described
an escalating series of aggressive actions and verbal threats made by
Cabbagestalk immediately before defendant fired his weapon.” Id.
Based on that testimony, a jury could have concluded that Brown
“reasonably believed that Cabbagestalk, who was younger and taller
than [Brown], and just two feet away, would gain control of [Brown’s]
gun,” and that Cabbagestalk’s statement to Brown (“you going to pull
a gun out, you better use it”) constituted a threat to take Brown’s gun
and use it against him, particularly because Cabbagestalk was
“grabbing for the gun at the same time he made the threat.” Id. at
427–28. The majority further reasoned that the initial aggressor
doctrine, which disallows a justification instruction if the defendant
was the first person to use or threaten to use deadly force, did not
apply here because Brown “held [the gun] by his side” and “did not
point it at Cabbagestalk” or threaten him. Id. at 431.
Two justices dissented. In their view, “[Brown’s] drawing of
his gun in the course of his confrontation with Cabbagestalk
constituted the threatened use of deadly physical force.” Brown, 71
N.Y.S.3d at 438. Brown could not have satisfied the subjective prong
of the two-step justification inquiry, the dissenters said, because there
was no evidence that he “actually believed” Cabbagestalk would use
deadly physical force at the time Brown drew his gun. Id.

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The New York Court of Appeals unanimously reversed and
reinstated Brown’s conviction. It held that “Brown was the initial
aggressor as a matter of law” and therefore his use of force was not
justifiable under N.Y. Penal Law § 35.15(1)(b). Brown, 33 N.Y.3d at
320–21. As the court explained, “[i]f mere physical force is employed
against a defendant, and the defendant responds by employing
deadly physical force, ‘the term initial aggressor is properly defined
as the first person in the encounter to use deadly physical force.’” Id.
at 321 (quoting McWilliams, 852 N.Y.S.2d at 524). Relying on its
precedent, the Court of Appeals explained that “the imminent threat
to use a gun against another is, necessarily, a threat of deadly physical
force.” Id. at 322 (citing People v. Dodt, 61 N.Y.2d 408, 414–15 (1984)).
The Court of Appeals determined that Brown’s conduct constituted
an imminent threat because he “placed his gun in a position where he
was readily able to aim and fire it imminently, and did so before Mr.
Cabbagestalk’s efforts to ‘swipe’ at the gun,” a conclusion that was
bolstered by the “circumstances surrounding that act.” Id.
Having determined that Brown’s act of drawing the gun made
him the initial aggressor, the Court of Appeals considered whether a
reasonable jury could have concluded that Brown withdrew from the
encounter after threatening the use of deadly force, which would still
allow him to claim justification. Id. at 323; see N.Y. Penal Law
§ 35.15(1)(b). Because there was no evidence that Brown withdrew
after pulling out his gun, the court held that Brown was indeed not
entitled to a justification instruction.

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The Court of Appeals also considered whether there was a
reasonable view of the evidence under which Cabbagestalk and not
Brown was the initial aggressor. Brown, 33 N.Y.3d at 323. It
concluded that “[n]o reasonable view of the evidence supports the
proposition that Mr. Brown was ever threatened by Mr. Cabbagestalk
with the imminent use of deadly force prior to the point at which Mr.
Brown drew his gun.” Id. at 323.
D. The District Court Decision
Brown then sought habeas relief in federal court, contending
that his federal due process rights were violated when he was denied
a justification charge. Magistrate Judge Katharine H. Parker filed a
Report and Recommendation recommending that the district court
deny Brown’s habeas petition. Brown v. James, No. 1:20-cv-10491, 2021
WL 11593759 (S.D.N.Y. Aug. 31, 2021). The district court agreed and
denied the petition, concurring with the New York Court of Appeals
that when Brown pulled out his gun he became the initial aggressor
as a matter of law, and that he was accordingly not entitled to a
justification charge under New York law. In rejecting Brown’s
argument that Cabbagestalk was the initial aggressor, the district
court emphasized that (1) Wolf did not testify that any of
Cabbagestalk’s swings made contact with Brown and (2) Wolf did not
describe Brown’s gun as “holstered” when Cabbagestalk swiped at it.
Brown v. James, No. 1:20-cv-10491, 2023 WL 4351194, at *3 (S.D.N.Y.
July 5, 2023). Thus, the district court held that none of Cabbagestalk’s
actions “can reasonably be interpreted as deadly force,” and instead
that “‘the evidence at trial establishes that [Brown] immediately

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responded to the victim’s use of ordinary force with deadly force’ by
shooting the victim.” Id. (quoting People v Irizarry, 157 N.YS.3d 287,
288 (1st Dep’t 2021)) (alterations adopted). Having concluded that
Brown was the initial aggressor, the district court dismissed the
petition because Brown failed to establish that he was erroneously
deprived of a jury instruction to which he was entitled under New
York law. And without such a predicate showing, Brown could not
establish that his trial had been fundamentally unfair, in violation of
his federal due process rights.
We granted a certificate of appealability, and this appeal
followed.
II. Standard of Review
We review the denial of a habeas petition de novo. Carew v.
Morton, 150 F.4th 150, 159 (2d Cir. 2025). We have jurisdiction
pursuant to 28 U.S.C. § 2253(a).
III. Discussion
A. Federal Habeas Review of State-Law Jury Instructions
To obtain relief, a state habeas petitioner like Brown must first
establish that he is “in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a). Here, he
contends that the purported instructional error violated his federal
constitutional rights. The claim advanced by Brown has two
components: (1) that the trial court erroneously declined to give a jury
charge to which he was entitled under New York law, and (2) that this

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state-law error “violated some right which was guaranteed to the
defendant by the Fourteenth Amendment.’” Davis v. Strack, 270 F.3d
111, 123 (2d Cir. 2001) (quoting Cupp v. Naughten, 414 U.S. 141, 146
(1973)). Even if Brown establishes that there has been a federal due
process violation, he can obtain habeas relief only if he satisfies the
further requirements of § 2254(d) that (3) the error led to a conviction
that was either (i) contrary to (or an unreasonable application of)
clearly established federal law as determined by the Supreme Court,
or (ii) based on an unreasonable determination of facts. See Jackson,
404 F.3d at 621. If we determine at the first step that the justification
instruction was correctly denied under New York law, then we need
not reach the second or third steps of this inquiry.
Our first task is therefore to determine whether the state court
deprived the defendant of a jury charge on a defense to which he was
entitled under state law. We begin with this question because “[w]hat
due process requires will often depend on what state law is.” Davis,
270 F.3d at 123. “States are free to define the elements of, and defenses
to, crimes,” id., subject to certain outer constitutional limits. See, e.g.,
Patterson v. New York, 432 U.S. 197, 210 (1977); Martin v. Ohio, 480 U.S.
228, 232 (1987); see also Kahler v. Kansas, 589 U.S. 271, 279 (2020). In
determining whether the defendant was entitled to the jury charge in
question, we do not “reexamine state-court determinations on state-
law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); see also
Davis, 270 F.3d at 123 n.4 (stating that we must “defer to state-court
interpretations of the state’s laws, so long as those interpretations are
themselves constitutional”). “In other words, our role here is not to

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interpret New York’s law of justification, but to determine whether
the evidence was sufficient to warrant a justification charge under
that law.” Davis, 270 F.3d at 124 n.4.
If this first inquiry yields the conclusion that there was
instructional error under state law, we turn to the second question:
“whether the trial court’s refusal to give the justification instruction
‘so infected the entire trial that the resulting conviction violates due
process.’” Jackson, 404 F.3d at 624 (quoting Cupp, 414 U.S. at 147). In
the past, we have held that habeas relief is warranted for a state
court’s wholesale failure to charge the jury on justification “where the
erroneous failure to give such a charge was sufficiently harmful to
make the conviction unfair.” Davis, 270 F.3d at 123–24; see also Jackson,
404 F.3d at 625. We have found such unfairness where the defendant
had a “compelling” and “highly credible” justification defense, the
omission of which was “catastrophic” for the defendant. Davis, 270
F.3d at 131–32; see also Jackson, 404 F.3d at 625–26 (granting habeas
relief in a case that, we concluded, was not materially different from
Davis; concluding that “the probabilities are substantial that, if given
a justification charge, Jackson’s jury might well have acquitted”). By
contrast, we have denied habeas relief, even in the face of similar
instructional error, where giving a justification charge “would not
have altered the result of the trial.” Blazic, 900 F.2d at 542.
Third, even if we conclude that there was instructional error,
and that the error violated due process, we may grant habeas relief
only if Brown’s conviction “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States,” or “was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2). “These standards require federal courts to give the
‘benefit of the doubt’ to merits decisions issued by the courts of the
sovereign States.” Klein v. Martin, 607 U.S. ____, 146 S. Ct. 589, 596
(2026) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). In order
to obtain relief, a petitioner convicted on state charges must “establish
that the state court ‘blundered’ so badly that every fairminded jurist
would disagree’ with the decision.” Klein, 607 U.S. ____, 146 S. Ct. at
596 (quoting Mays v. Hines, 592 U.S. 385, 392 (2021)) (alteration
adopted). This is because federal habeas review of state convictions
“intrudes on state sovereignty to a degree matched by few exercises
of federal judicial authority.” Harrington v. Richter, 562 U.S. 86, 103
(2011).
B. The Failure to Give a Justification Instruction Did Not
Violate Due Process
The New York Court of Appeals held that Brown was the initial
aggressor and therefore ineligible for a justification instruction
because his act of drawing his gun “in a position where he was readily
able to aim and fire it imminently” was “an imminent threat of deadly
physical force.” Brown, 33 N.Y.3d at 322. This ruling can essentially
be divided into two parts, one legal and one factual. As a legal matter,
the Court of Appeals held that the imminent threat to use deadly force
makes one an initial aggressor under N.Y. Penal Law § 35.15(b). Id.
We are without power to second-guess the Court of Appeals’

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articulation of that legal standard. Estelle, 502 U.S. at 67–68; Davis, 270
F.3d at 123 n.4. Accordingly, we limit our review to how that court
applied the standard in this case. As relevant here, the Court of
Appeals concluded that Brown’s action of drawing a gun, and
holding it in a way that allowed it to be readily aimed and imminently
fired, constituted just such an imminent threat to use deadly force.
As an initial matter, we discern no error in the New York Court
of Appeals’ assessment of the evidentiary record before the state trial
court as to the key facts at issue here, namely that Brown pulled out a
gun and held it by his side. These conclusions were supported by
ample and unrebutted witness testimony: namely, Wolf’s testimony
that he saw Brown holding the gun at his waist and that he heard
Cabbagestalk state that Brown “pull[ed] a gun out,” and all three
witnesses’ testimony that they heard a gunshot go off in short order.
There was no evidence in the state court record that could have
allowed the jury to reach a contrary conclusion.
Armed with these undisputed facts, we likewise see no error in
the New York Court of Appeals’ application of state law to those facts:
that Brown threatened Cabbagestalk with a gun and was therefore the
initial aggressor. It is self-evident that the use of a firearm constitutes
the use of deadly force. And, like the district court, we agree with the
New York Court of Appeals’ conclusion that in the context of this
case—where the parties were in a heated argument that was starting
to get physical—Brown’s display of the gun, and then holding it at his
waist ready to aim and fire in an instant, constituted a threat to
imminently use deadly force.

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Brown argues that a reasonable inference could be drawn that
his act of drawing a firearm was not, in fact, a threatened imminent
use of deadly physical force. He contends that “the jury could have
found that Brown’s act of drawing his lawfully-possessed service
firearm, and holding it at his side, pointed away from Cabbagestalk,
was a defensive display or brandishing of his weapon” that “did not
threaten the imminent use of deadly physical force.” Appellant’s Br.
at 34. Under Brown’s interpretation of events, he drew his weapon to
deter Cabbagestalk’s attempts to hit him, and fired it only after
Cabbagestalk tried to take the gun from him. Thus, according to
Brown, the Court of Appeals’ rejection of his gloss on the facts was
the result of inferences drawn against him instead of in his favor, as
required when assessing the availability of a justification defense. In
support of his argument, Brown points to our decisions in Davis and
Jackson, where we granted habeas relief on the grounds that New York
state courts erroneously drew inferences against the defendant when
denying a justification instruction. Neither ruling aids Brown’s
arguments here.
Davis involved an extraordinarily unusual set of facts
supporting a justification offense, and we concluded that the New
York courts had both unreasonably applied settled law and made
unreasonable determinations of fact. There, the New York Appellate
Division affirmed the denial of a justification instruction in a case
where the defendant, Davis, fatally shot a person who had previously
robbed him at gunpoint, raped him, and threatened his life. 270 F.3d
at 121. When Davis next passed this person on the sidewalk, the

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person started to turn around and reach to his waistband, and Davis
shot him in the back. In the Appellate Division’s view, (1) Davis
lacked a reasonable belief that the victim was about to shoot him
because Davis had not seen a gun on the victim’s person, and
(2) Davis failed to offer a “convincing reason why he did not retreat
from the scene at the time of the actual shooting.” Id. at 129, 130
(citation omitted). We granted habeas relief. In our view, the former
conclusion ignored that Davis knew that the victim “had robbed,
raped, and beaten other people at gun point,” and had indeed
“robbed Davis at gun point three times, forced him to strip naked
twice, raped him once, once urged his co-assailant to shoot Davis, and
at their last meeting, after raping him, promised to kill Davis when he
next saw him.” Id. at 129. That is, we believed the Appellate Division
inappropriately discounted evidence of Davis’s subjective fear, and
the reasonableness of that fear. We also held that the Appellate
Division had “no basis” to conclude that Davis might have retreated
safely because “[i]f Davis’s reasonable belief that [the victim] had a
gun had been correct, he had one or two seconds left to live” as they
stood there on the sidewalk and the victim pulled out a gun, and
Davis thus could not have retreated with “complete safety,” as
required by N.Y. Penal Law § 35.15(2)(a). Id. at 130. Put simply, we
found grievous fault with the New York court’s application of the
subjective and objective inquiries required by § 35.15—namely, that it
did so in a way that failed to draw obvious inferences in Davis’s favor,
in contravention of state law. And we concluded that the New York
court’s decision was based on an unreasonable determination of the

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facts, in light of the evidence presented in the state proceeding, in
contravention of 28 U.S.C. § 2254(d)(2). Id. at 133.
In Jackson, the defendant fatally shot a severely inebriated man
who had attempted to take a set of keys from the defendant by force,
including by punching the defendant. 404 F.3d at 624. The state trial
court, as affirmed by the Appellate Division, stated that Jackson
would have been entitled to a justification instruction only if “there
was a burglary being committed or an arson,” but held that “none of
that is applicable in this case.” Id. at 617; see N.Y. Penal Law
§ 35.15(2)(b), (c) (providing, as relevant here, that a person may be
justified in the use of deadly force if “[h]e or she reasonably believes
that such other person is committing or attempting to commit” a
burglary or a robbery and satisfies the conditions in § 35.15(1)). The
federal district court granted Jackson’s habeas petition because, as
relevant here, it agreed with Jackson that the trial court improperly
denied Jackson a justification instruction. Id. at 617–18. We affirmed,
agreeing with the district court that “[v]iewing the evidence in the
light most favorable to Jackson,” a jury could have concluded that
Jackson thought the victim was about to burglarize or rob him,
thereby justifying his use of force pursuant to N.Y. Penal Law
§ 35.15(2)(b) or (c), and that Jackson reasonably “believed that simply
striking back or announcing that he had a gun would not have
prevented the robbery and that he was required to use his weapon,”
id. at 624. Thus, as in Davis, we sharply disagreed with the state
courts’ assessment of the subjective and objective prongs of the
justification instruction inquiry and held that the state courts

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erroneously failed to draw inferences in the defendant’s favor, as
required by New York law.
Critically, neither Davis nor Jackson involved the “initial
aggressor” doctrine set forth in N.Y. Penal Law § 35.15(b). In both of
those cases, our decisions turned on the subjective and objective
criteria of the defense of justification. And in both cases, the trial
evidence permitted inferences favorable to the defendant about what
he actually feared, or objectively could have feared, from the person
he ultimately shot. By contrast, the initial aggressor doctrine turns
not on what the defendant feared, but rather on the objective
circumstances of what he did and whether his actions would
reasonably be perceived as a threat to imminently use deadly force.
Applying that legal standard here, even accepting Brown’s contention
that he intended his display of the firearm to be “defensive” and to
deter Cabbagestalk from hitting him, such a deterrent effect would
have been produced only by impressing upon Cabbagestalk that
Brown would shoot him. And threatening to shoot someone
comfortably qualifies as the threatened use of deadly physical force.
Brown points to no plausible inference, based on the trial evidence,
that his pulling of the gun was not such a threat. Davis and Jackson
are therefore of little help to Brown.
We likewise agree with the district court, and the New York
Court of Appeals, that no reasonable view of the evidence permits the
conclusion that Brown withdrew from his confrontation with
Cabbagestalk after drawing his gun, which is the only way he could
still have been eligible for the defense upon the determination that he

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was the initial aggressor. See Brown, 33 N.Y.3d at 323. As the district
court explained, review of the trial transcripts does not reveal any
testimony that Brown withdrew from the confrontation with
Cabbagestalk. Brown, 2023 WL 4351194, at *3. We also agree that no
reasonable view of the evidence reveals that Cabbagestalk was
actually the initial aggressor. That is, there is no evidence that
Cabbagestalk threatened Brown with deadly physical force before
Brown got out his gun—the only remaining theory that might have
permitted a justification instruction here. Brown, 33 N.Y.3d at 323–24.
Even if we entertained some residual doubt about whether the
state courts had properly denied a justification defense, we would still
conclude—under the third prong of our habeas inquiry—that Brown
failed to satisfy § 2254(d), which calls for especially deferential federal
review of state convictions. Brown has not shown, as he must, that
the New York Court of Appeals acted contrary to clearly established
federal law as set forth in Supreme Court precedent. Even in Davis
and Jackson, where we granted habeas relief, we did not conclude that
the New York courts had acted “contrary to” federal law as provided
in § 2254(d)(1). As in Davis, “there is no indication that the [state
courts] construed the due process clause in a manner ‘opposite to’ the
Supreme Court’s rulings.” 270 F.3d at 133.
Nor has Brown satisfied the alternative prong of § 2254(d)(1)—
namely, that the New York Court of Appeals unreasonably applied
clearly established federal law as determined by the Supreme Court.
It bears repeating that, “[i]n order to obtain a writ of habeas corpus in
federal court on the ground of error in a state court’s instructions to

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the jury on matters of state law, the petitioner must show not only
that the instruction misstated state law but also that the error violated
a right guaranteed to him by federal law.” Casillas v. Scully, 769 F.2d
60, 63 (2d Cir. 1985). Our Court has read Cupp v. Naughten, 414 U.S.
141 (1973), to establish a due process violation where a state court’s
instructional error “so infected the entire trial that the resulting
conviction violates due process.” Jackson, 404 F.3d at 624 (quoting
Cupp, 414 U.S. at 147). In Davis, we held that the state court
unreasonably applied that standard where the defendant had a “clear
right” to a case-determinative jury charge on self-defense, where
denial of that instruction was “catastrophic,” and where the trial was
therefore “egregiously at odds with the standards of due process”
clearly established by Cupp. Davis, 270 F.3d at 132–33; see also Jackson,
404 F.3d at 627–28 (reaching the same conclusion in a similar case).
Here, by contrast, it cannot be said that the New York Court of
Appeals unreasonably applied Cupp when it concluded that Brown
was not entitled to a justification defense. Even if we disagreed with
that conclusion, we could hardly say that every fairminded jurist
would similarly disagree. See Klein, 146 S. Ct. at 596. That is indeed a
high bar to surmount. As the Supreme Court has repeatedly
admonished, a state court cannot be faulted as having unreasonably
applied federal law unless its decision “was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. Having reviewed the New York Court of
Appeals’ decision, we detect nothing that could be remotely

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described as the sort of “extreme malfunction[]” for which federal
habeas relief is reserved. Klein, 146 S. Ct. at 596 (internal quotation
marks omitted). Even insofar as Brown contends that the Court of
Appeals applied its own precedents inconsistently, he does not argue
and cannot show that the decision was a “novel construction of a
criminal statute to conduct that neither the statute nor any prior
judicial decision has fairly disclosed to be within its scope.” United
States v. Lanier, 520 U.S. 259, 266 (1997); see also Metrish v. Lancaster,
569 U.S. 351, 359 (2013); Rogers v. Tennessee, 532 U.S. 451, 461–62
(2001); Bouie v. City of Columbia, 378 U.S. 347, 352 (1964).
Finally, we reach the same conclusion with respect to the final
question posed by § 2254(d)(2)—whether the state court decision was
based on an unreasonable determination of fact based on the evidence
in the state proceeding. As explained earlier, the New York Court of
Appeals relied on facts that were clearly supported by the witness
testimony presented at trial, and those facts were essentially
undisputed. Brown was the first (and only) antagonist to pull out a
gun during his argument with Cabbagestalk; Brown held the gun at
his waist, where it could be readily aimed and fired; and he indeed
did so shortly after the gun was drawn, killing Cabbagestalk. The
New York Court of Appeals therefore cannot be said to have based its
decision on unreasonable findings of fact.
IV. Conclusion
In sum, we hold that the New York Court of Appeals did not
erroneously deprive Brown of a justification instruction to which he

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was entitled under state law when it concluded that his conduct
rendered him an initial aggressor under N.Y. Penal Law § 35.15(b).
And because there was no state-law instructional error, there cannot
have been a federal due process violation. The decision of the district
court dismissing the petition is AFFIRMED.

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