The opinion of the court was delivered by: Dora L. Irizarry, District Judge
Levar Chung ("Chung" or "petitioner") petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 10, 1999, after a trial by jury in New York State Supreme Court, Queens County, petitioner was acquitted of intentional murder, under N.Y. Penal Law § 125.25(1), but convicted of depraved indifference murder under N.Y. Penal Law § 125.25(2); criminal possession of a weapon in the fourth degree, N.Y. Penal Law § 265.01); and tampering with physical evidence, N.Y. Penal Law § 215.40. The Appellate Division of the New York State Supreme Court, Second Department, affirmed the judgment of conviction on the merits, see People v. Chung, 287 A.D.2d 575 (2001), and leave to the New York Court of Appeals was denied. People v. Chung, 97 N.Y.2d 702 (2002).
Petitioner seeks a writ of habeas corpus on the grounds that (1) the evidence presented at trial was legally insufficient to support his conviction, (2) the trial court failed to suppress his statements to the police, and (3) his trial counsel was ineffective. Respondent, Gary Filion, contends that petitioner failed to exhaust his state remedies, pursuant to 28 U.S.C. § 2254. Although petitioner submitted his Appellate Division briefs to the New York Court of Appeals, respondent contends that petitioner identified only the suppression issue as a ground for appeal in his letter application for leave to appeal. For the reasons set forth below, the petition is denied.
On February 10, 1999, the jury found petitioner guilty of depraved indifference murder, but acquitted him of intentional murder. Petitioner timely appealed to the Appellate Division, Second Department arguing that (1) his conviction failed to evince a depraved indifference to human life, (2) he was denied effective assistance of trial counsel, (3) the trial court improperly denied the motion to suppress his statements, and (4) his sentence was excessive. The Appellate Division, Second Department, affirmed his conviction. People v. Chung, 731 N.Y.S.2d at 494.
On November 12, 2001, petitioner filed an application for leave to appeal with the New York State Court of Appeals. Although his letter indicated that he was enclosing a copy of his appellate brief, petitioner did not request a review of the claims asserted therein. Instead, petitioner filed a second letter, on December 5, 2001, arguing only that the trial court improperly denied his suppression motion. The New York Court of Appeals denied the application for leave on January 22, 2002.
On August 19, 1997, Omar Howell ("Howell") and a group of teenagers including the Petitioner, confronted Keith Myers ("Myers" or "victim"), a sixteen-year-old known to them from the neighborhood. (Bethea Tr. 728-29; 775--777.)*fn1 Howell, the group's apparent leader, confronted Myers, stating "remember you threw that egg at me" and punched Myers in the face. (Bethea Tr. 730.) Myers ran to the nearby yard of a friend, Nicholas Devastey ("Devastey"). (Tr. 695; Bethea Tr. 730.) Howell, petitioner, and the other teenagers followed Myers to Devastey's home and began taunting Myers. (Tr. 697--8, Devastey Tr. 715--716; Devastey Tr. 735--37; 794--95.)
Myers remained in Devastey's house for about 30 minutes until the group of teenagers left, and Devastey drove Myers home. ( Devastey Tr. 700--01; 703--05.) Myers told his mother what had happened and she called the police. When they arrived, they canvassed the area and left. (Tr. 570; 1225.) Meanwhile, Howell had procured three to four kitchen knives and, at some point, distributed them to the others in the group including petitioner. (Bethea Tr. 738--739.)
A short time later, Howell and the group of teenagers saw Myers outside of his home and walked toward him. (Tr. 913--14; 1146.) Myers' mother and eleven-year-old sister, Jennifer Myers, saw the group of teenagers approaching and called 911 for the second time that day. (Id. at 1233.)
Myers and Jennifer waited outside of their home for the police to arrive. As the group of teenagers neared, Jennifer saw that Howell and petitioner each had a knife and she and Myers went back inside the house. (Id. at 1449--1453.) Myers' mother called 911 a third time- this time to tell the police that there were teenagers outside of her house, who were possibly armed and wanted to attack her son. (Id. at 1234).
At this point, Howell and the group of teenagers reached Myers' house, and Howell and petitioner opened the front gate and entered the yard. (Bethea Tr. 742; 1449--50.) Myers's mother ran out of the house screaming at the teenagers that the police were coming and that they should get off her property. (Tr. 1234--35.) Myers went outside to help his mother. (Id. at 1453--54.) Most of the teenagers ran away, but Howell and petitioner remained in the front yard. (Bethea Tr. 743; Tr. 1455--56.)
Myers confronted Howell and knocked him to the ground. (Id. at 743; Tr. 1456.) Petitioner, who was standing behind Myers, punched him in the back and Myers turned around to face petitioner assuming a boxing stance. (Bethea Tr. 743; Tr. 1456.) Petitioner jabbed at Myers with a knife and stabbed him in the left side of his chest. (Bethea ...