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VICTOR HERBERT, Superintendent, Attica Correctional Facility, Respondent.

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Petitioner David Policano (also known as "Tippy," and who will be referred to here as "Policano"), an inmate at the Shawangunk Correctional Facility,*fn1 seeks habeas relief from a judgment of conviction entered after a jury trial in state court. I held oral argument on March 26, 2004 and again on July 2, 2004. The petition places in clear relief the need for extreme care on the part of the prosecutor when a murder case goes to the jury in a New York courtroom. It is typical in such cases for the defendant to be charged with both intentional murder and "depraved indifference" murder, i.e., reckless conduct creating a grave risk of death, engaged in under circumstances evincing a depraved indifference to human life, which results in death. The New York Court of Appeals has made it clear that depraved indifference murder is not a lesser offense included within the offense of intentional murder. They are different, mutually exclusive crimes. When both offenses are submitted to a jury, they must be submitted in the alternative. A defendant may not be found guilty of both based on the same murder.

  Frequently, the facts of a case permit a rational jury to convict a defendant of either crime. For example, if a defendant fires a shot from his apartment window, killing a person in the street, the evidence may well support both an inference that he intended to kill the victim by shooting him and an inference that he intended only to shoot in his direction, consciously disregarding the known risk that the bullet would kill him, and thus evincing a depraved indifference to human life. In such a case, both offenses may properly be submitted to the jury, which then has three choices: guilty of intentional murder, guilty of depraved indifference murder, or not guilty.

  However, the facts of some cases leave only two rational choices for a jury: the defendant either intentionally killed the victim or the defendant has not been proved guilty. Such cases do not include evidence from which a jury can infer that the murder was the result of reckless conduct. Accordingly, prosecutors must be very careful not to allow both charges to be submitted to the jury. If they are, a conviction for depraved indifference murder must be set aside on insufficiency grounds. Since double jeopardy principles preclude a retrial on the intentional murder charge, the killer walks free.

  Unfortunately, that must be the outcome here. At Policano's trial, the trial judge inquired of the prosecutor as to whether the depraved indifference charge should be submitted to the jury. The prosecutor should have agreed to dismiss it. Instead, she argued, apparently off-the-cuff, that the evidence of intentional murder — numerous shots fired at point-blank range — could be construed as evidencing recklessness as well. That is not indefensible logic, but the New York Court of Appeals has explicitly rejected it in multiple cases. The disregard for human life inherent in every intentional murder does not establish the recklessness necessary for a depraved indifference conviction.

  The trial court, persuaded by the prosecutor's incorrect argument, submitted both charges to the jury, which convicted Policano of depraved indifference murder. As a result, and as explained more fully below, I am constrained to order the release of Policano because he was convicted of recklessly causing a murder that, according to the evidence, he intentionally committed if he committed it at all.


  At approximately 8:50 p.m. on January 27, 1997, at the corner of Carlton and Myrtle Avenues in Brooklyn, New York, Policano shot Terry Phillips three times in the back of the head from three to five feet away. When Phillips fell, Policano shot him again in the leg. Policano was charged with two counts of murder in the second degree, and one count each of criminal possession of a weapon in the second and third degrees. One of the murder counts alleged intentional murder, in violation of New York Penal Law § 125.25(1); the other alleged depraved indifference murder, in violation of New York Penal Law § 125.25(2). On March 16, 1998, after a jury trial, Policano was acquitted of intentional murder but convicted of depraved indifference murder, and was sentenced as a second felony offender to a term of imprisonment of twenty-five years to life.

  In his appeal to the Appellate Division, Second Department, Policano claimed that (1) there was insufficient evidence to prove his guilt of depraved indifference murder; (2) the verdict was against the weight of the evidence; (3) the prosecutor improperly impeached the credibility of a defense witness based on that witness's failure to come forward with exculpatory testimony; (4) the prosecutor's summation denied Policano a fair trial; and (5) the trial court improperly allowed the prosecutor to introduce a statement attributed to Policano without providing notice of intent to offer the statement into evidence.

  The Appellate Division unanimously affirmed Policano's judgment of conviction on November 13, 2000, stating:
Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence.
The defendant's remaining contentions are without merit.
People v. Policano, 715 N.Y.S.2d 880, 881 (2d Dep't 2000) (citations omitted). Policano was denied leave to appeal on March 30, 2001. People v. Policano, 96 N.Y.2d 786 (2001) (Smith, J.).

  In his instant petition for a writ of habeas corpus, filed March 5, 2002, Policano claims that (1) there was insufficient evidence to prove his guilt of depraved indifference murder; (2) the verdict was against the weight of the evidence; (3) the prosecutor improperly impeached the credibility of a defense witness based on that witness's failure to come forward with exculpatory testimony; and (4) the prosecutor's summation denied Policano a fair trial. By order dated February 7, 2003, the Honorable Lois Bloom, United States Magistrate Judge, stayed the petition to allow Policano to exhaust an ineffective assistance of appellate counsel claim through an application in state court for a writ of error coram nobis. Judge Bloom's order deemed the instant habeas petition to include this additional claim.

  On September 10, 2003, Policano filed a pro se application in the Appellate Division seeking a writ of error coram nobis on that ground. On December 2, 2002, the Appellate Division denied Policano's application, holding, "The appellant has failed to establish that he was denied the effective assistance of appellate counsel." People v. Policano, 751 N.Y.S.2d 744 (2d Dep't 2002). Leave to appeal to the Court of Appeals was denied. People v. Policano, 99 N.Y.2d 618 (2003) (Smith, J.). Policano subsequently submitted this claim in his amended petition.

  After hearing argument on March 26, 2004, I appointed counsel and asked the parties to brief a series of questions regarding Policano's insufficiency claim and the recent New York Court of Appeals decision, People v. Gonzalez, 1 N.Y.3d 464 (2004). After receiving supplemental briefing, I heard further argument on July 2, 2004.


  A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."*fn2 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 1175 (2003)). However, there is "force" to the argument "that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision"; "[§] 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law." Yarborough v. Alvarado, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has concluded, however, that while "the difference between applying a rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt." Id. at 2151.

  Under the "unreasonable application" standard set forth in Williams, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-21 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  The Supreme Court recently explained that the specificity with which the rule of law at issue is defined may affect whether the state court's determination was "unreasonable": [T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.

 Alvarado, 124 S. Ct. at 2149.

  This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
261 F.3d 303, 312 (2d Cir. 2001).

  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by ...

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