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August 16, 2005.

CALVIN E. WEST, Superintendent, Elmira Correctional Facility, Respondent.

The opinion of the court was delivered by: DENNY CHIN, District Judge


Pro se petitioner Carlos DeLucia brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted on June 27, 2000, after a jury trial in the Supreme Court of the State of New York, New York County, of murder in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree. He was sentenced to concurrent terms of imprisonment of twenty-five years to life on the murder conviction, fifteen years on the weapons conviction, and three-and-a-half to seven years on the reckless endangerment conviction. Petitioner contests his conviction on the following grounds: (1) the trial court improperly modified mid-trial its prior ruling prohibiting the prosecution from offering certain evidence; and (2) the trial court's refusal to charge manslaughter in the first degree as a lesser-included offense to murder denied appellant a fair trial. The Court has reviewed the parties' submissions and the record of the proceedings below. For the reasons that follow, the petition is denied.


  I. The Facts

  The following is a summary of facts adduced at DeLucia's trial.

  On September 25, 1998 at approximately 10 p.m., 32 year-old DeLucia approached 17-year-old Antony Boynton and Boynton's half-sister, Onica Bruce, in front of 224 East 28th Street in New York City, an apartment complex in which Boynton, Bruce, DeLucia, and DeLucia's girlfriend, Olga Rosado, lived. (Tr. 373, 377-79, 393-94, 675, 782, 809, 844-45).*fn1 DeLucia and Boynton knew each other from the neighborhood, and Boynton owed DeLucia twenty dollars. (Tr. 397-98, 797, 832-33, 835, 845, 851-52). DeLucia threatened Boynton, stating that Boynton "better give him his money, or he will make an example out of him." (Tr. 393-99, 408-09). The next day at noon, DeLucia repeated his threat that Boynton "better have his fucking money" and instructed him to give the twenty dollars to him or Rosado. (Tr. 397, 404, 411, 413-14, 422-23).

  On Sunday, September 27, 1998 at approximately 3 a.m., DeLucia and Boynton stood with a group of friends outside of 244 East 28th Street. (Tr. 290, 607-08, 615-16). Renee Ellis, a security supervisor who lived at 344 East 28th Street on the corner of First Avenue, and Todd Brown, who had just left his friend's apartment, were present. (Tr. 281-84, 286, 543-45, 607). DeLucia slapped Boynton across the face. (Tr. 290, 342, 558-59). Ellis then stepped in between DeLucia and Boynton to break up the confrontation. (Tr. 302). DeLucia accused Boynton of "run[ing] off with [his] twenty dollars." (Tr. 565). When Ellis asked what was going on, Boynton explained, "I owe him twenty dollars." (Tr. 291, 302, 304, 341). Ellis immediately handed DeLucia twenty dollars, and DeLucia "snatched" the money, continued cursing, and then shouted to Ellis, "[i]t is none of your damn business. Stay out of it. It is the principle." (Tr. 291, 304-05, 343). Brown then pushed Ellis out of the way of Boynton and DeLucia. (Tr. 562-63, 570-71, 605, 617). Seconds later, DeLucia pulled out his revolver and shot Boynton in the head from between three and five feet away. (Tr. 566-67, 604-06, 616). Ellis had not seen the shooting because he had his back to DeLucia and Boynton, but when he heard the shot, he turned around, saw DeLucia with his gun pointed at Boynton, and then ran. (Tr. 291-93, 308-10, 331, 343-45, 360). Brown also ran away from DeLucia. (Tr. 570-71, 644). A few minutes later, Ellis encountered DeLucia exiting from a side door at 224 East 28th Street. (Tr. 314, 331-32, 343-45, 351, 575, 598). Ellis said to an acquaintance who was standing with DeLucia that he was looking for Boynton. (Tr. 314, 352). DeLucia responded, "Anthony is fucking dead and so will you [be]." (Tr. 293, 314, 346, 352-53). DeLucia then pulled out his gun and fired two shots at Ellis, but missed. (Tr. 293, 316-17, 347, 353).

  Around 3:15 a.m., the police found Boynton slumped in front of the building and bleeding from his head. (Tr. 428). An ambulance took Boynton to Bellevue Hospital where he was declared "brain dead" upon arrival. He was declared officially dead at 7:25 p.m. (Tr. 381, 472).

  II. Procedural History

  A. The Proceedings in the Trial Court

  DeLucia was indicted in 1998 in the Supreme Court, New York County. The trial commenced on May 25, 2000. During the trial, the prosecution requested that it be allowed to offer evidence suggesting that the twenty-dollar debt was a result of a drug transaction. (Voir Dire Tr. 330; Tr. 195-202). The trial court ruled, in accordance with People v. Molineux, 168 N.Y. 264 (1901), that evidence suggesting that DeLucia and Boynton were involved in drug transactions would be overly prejudicial and, therefore, not admissible. (Tr. 200). The trial court cautioned, however, that if the defense were to "open the door" by arguing that "the twenty dollars was not owed . . . [or] that it is illogical for the defendant to have killed [Boynton] for twenty dollars," the prosecution would be allowed to present evidence of drug transactions to the jury, including evidence regarding marijuana sales between DeLucia and Boynton. (Tr. 201-02).

  At trial, DeLucia took the stand and testified that he was generous and had previously given Boynton money just like he "gave all the other kids in the neighborhood money when they asked" for money to buy ice cream or go to a movie. (Tr. 787-88, 799, 834-35, 851-52). The prosecution argued that the direct testimony "opened the door" and the trial court agreed. (Tr. 798-800). As a result, the prosecution elicited testimony that Boynton sold drugs for DeLucia. Specifically, Bruce testified that she observed Boynton selling drugs, and on one occasion two weeks prior to the murder, she saw Boynton hand DeLucia money in exchange for approximately ten bags of marijuana. (Tr. 913-16, 918).

  At the conclusion of the trial, the trial court submitted to the jury two murder counts and a second-degree weapons possession count with respect to Boynton's death, and attempted murder, attempted assault, criminal use of a firearm, and reckless endangerment counts with respect to DeLucia's alleged conduct toward Ellis. On June 6, 2000, the jury found DeLucia guilty of intentional murder and criminal possession of a weapon in the second degree in the killing of Boynton, and reckless endangerment in the first degree for shooting at Ellis. The jury found DeLucia not guilty on the remaining charges. On June 27, 1999, Justice James Yates sentenced DeLucia to an indeterminate term of twenty-five years to life on the murder conviction, a determinate ...

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