Appeal from an order of the United States District Court for the Western District of New York (Telesca, J.) denying a section 2254 application for a writ of habeas corpus. Affirmed.
Before: VAN GRAAFEILAND, NEWMAN and MINER, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
Angelo Fratarcangelo appeals from an order of the United States District Court for the Western District of New York (Telesca, J.) denying his petition for a writ of habeas corpus. We affirm.
In the early morning hours of August 1, 1976, after drinking at a local bar, petitioner Fratarcangelo went to a party at a neighbor's apartment. Petitioner stayed for a couple of hours, drinking several beers while there. Eventually, he left to go next door to his own apartment, where a quarrel ensued between him and his wife. After a short time, Fratarcangelo returned to his neighbor's apartment carrying a .44 calibre revolver.
As he entered the apartment, petitioner fired a shot into the hallway ceiling. In an attempt to keep petitioner from proceeding to the kitchen where members of the group were cooking breakfast, David Ross, one of the party-goers, stood in petitioner's path. When Ross indicated that he would not allow petitioner to pass, petitioner shot him in the stomach. Linda Southard, one of the kitchen group, peered through a doorway to investigate the commotion, and Fratarcangelo fired a shot which barely missed her. When Roy Pace, a long-time friend of petitioner, asked him why he had shot Ross, Fratarcangelo shot him in the stomach as well.
Petitioner's wife then arrived on the scene and pleaded and struggled with her husband in an attempt to disarm him. During the struggle he stated several times that he was going to kill her. At some point, however, she convinced petitioner to go back to their own apartment. While those remaining at the scene were telephoning for assistance, they heard two shots from next door. When the police arrived at petitioners, they found his wife dead on the floor.
They found Fratarcangelo with a gun in his hand sitting in the bedroom of a vacant apartment in the same building. One of the officers who knew Fratarcangelo persuaded him to come out, which he did slowly, aiming his pistol at the policeman the whole time. When Fratarcangelo was within two or three feet, the officer wrested the gun from him.
An autopsy of Mrs. Fratarcangelo revealed that she had been shot twice. The first shot was not fatal but was sufficient to fracture the victim's left pelvic bones and knock her to the floor. The second, which severed her aorta, was fatal. Fortunately, both Ross and Pace survived their injuries.
After a jury trial before Judge Purple in Steuben County Court, Fratarcangelo was convicted of Second Degree Murder, two counts of Attempted Murder in the Second Degree, and one count of Reckless Endangerment in the First Degree. The Appellate Division, Fourth Department, affirmed, 77 A.D.2d 820 (1980), and leave to appeal to the New York Court of Appeals was denied, 53 N.Y.2d 707 (1981).
Because there never was any question that appellant shot the three victims and shot at the fourth, the only real issue on the trial was whether he was too intoxicated to form the necessary intent for the crimes. Accordingly, the trial judge charged at some length on the question of intent, beginning with the count of Second Degree Murder. He began this portion of his instructions as follows:
Before you, considering all the evidence, can convict the defendant of Murder in the Second Degree you must believe and decide that the People have established beyond a reasonable doubt that the defendant, Angelo Fratarcangelo, intended to shoot Joyce Fratarcangelo to kill her; but intent to injury, to hurt, to harm without the intent to kill is not enough for Murder. There can be no Murder unless the killer intended to cause some person's death. To find that such intention you must come to the conclusion that it was his conscious objective to cause death; that his act or acts resulted from that conscious objective. If you find no such intent to kill; if for example, you find an intent to injure without the intent to kill or if you find that the defendant, Angelo Fratarcangelo, was in such a state of intoxication as to be unable to form the specific intent to kill then you must consider one or more of the lesser degrees of Manslaughter, the nature and requirements of which I shall summarize for you. How do you determine intent. Intent is, of course, a question of fact before the jury. I charge you that a man is presumed to intend the ordinary and natural consequences of his acts.
If the judge had stopped at that point, petitioner's argument that Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979), mandates the granting of a writ might have merit. However, the judge did not stop there. Immediately following the single sentence upon which petitioner bases his claim for reversal, the court continued:
In other words, it is not necessary to show a man's intent by his own statement. It may be inferred from his conduct. We cannot probe into a man's mind and extract his intention at the time of the commission of the crime so we must rely upon the facts and circumstances surrounding his actions. Intent means a frame of mind of the defendant at the time he committed the acts. Very seldom does a person accused of a crime admit it at the time he intended to commit a crime. Therefore, you must look at all the surrounding circumstances including but not limited to what the defendant did, what he said, the nature of ...