The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Christopher Zeito ("Zeito"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on one count of second degree murder in Monroe County Court. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On the morning of August 4, 1996, the victim, Michael Lanza ("Lanza"), picked up John Sutton ("Sutton") in his van on their way to work. Lanza's utility van was registered in the name of his former girlfriend, Jeannine Bianchi ("Bianchi"), but he made the installment and insurance payments on it. On the way back from work that evening, Lanza and Sutton stopped at a mini-mart on Lyell Avenue to buy gasoline. Before they could leave, a red Honda Civic pulled up nose-to-nose with Lanza's van and blocked him from leaving. Zeito, Bianchi's current boyfriend, was driving the Civic. Bianchi's brother, Gary Freece ("Freece"), was in the passenger seat.
Freece approached Lanza, who was sitting shirtless in the driver's seat of the van, and told him to get out because Bianchi wanted the van back. Lanza refused, telling Freece, "If she wants the van, she can come and get it." At that point, Zeito jumped out of the passenger seat of the Civic with an eleven-inch steak knife, approached Lanza, and put the knife to his throat. Lanza pulled away toward the passenger's side of the van and Sutton boosted him out of the window and onto the roof of the van. The next thing Sutton saw was Lanza on his back being straddled by Zeito, who was swinging the knife as Lanza tried to ward off the blows. As Sutton went inside the mini-mart to call the police, he heard Lanza begging Freece for help. Freece answered that Lanza deserved what he was going to get. By the time Sutton came back out, Lanza was attempting to crawl onto a bus. Sutton asked Lanza if he was alright, but Lanza could only cough.
Zeito and Freece departed, with Zeito driving his car and Freece in the van. Freece told Sutton to warn Lanza that, the next time, it would be Freece doing the attacking. Freece that Lanza would not be able to run away: "He'll still be lying there."
Eyewitness Joan Phillip ("Phillips"), who was waiting for that bus, saw "an attack on some guy" involving a knife. She first saw the shirtless victim on top of the van; he then appeared to jump off, landing on his back. Phillips said he was unarmed but that the man standing over him had a knife. She testified that she "knew it was going to be serious, that's all." After a few minutes, Phillips saw Lanza get up and stagger to the bus stop and crawl up the stairwell of the bus as the door opened. Seconds after Lanza collapsed, he appeared to go into shock and then he died.
The medical examiner confirmed that the cause of death was a puncture wound to the chest which pierced the heart. He described the wound as a "sharp injury" with a "narrow width and a rather long, relatively long depth" which "strongly suggest[ed] a knife[.]" T.400.*fn1 There also were smaller, superficial "defense-type" wounds to the victim's hands, also apparently caused by a knife. T.402. The toxicology report indicated the presence of cocaine in Lanza's blood supply, but it had nothing to do with the cause of death. T.407-09.
The defense theory of the case was justification--that Zeito was attached by Lanza, who allegedly was in a drug-crazed frenzy. According to defense witnesses Bianchi and Freece, Zeito was attempting to secure possession of his fiancee's van from Lanza, who "couldn't stay out of trouble" and who was a "geeker" (i.e., a person who constantly did cocaine). Freece testified that he approached the van and attempted to grab Lanza, who "slipped away" and then flew through passenger's side window "like Superman," "using his feet to lunge at [Zeito]." Freece testified that, during the struggle, Zeito was on his back and Lanza was on top, threatening to kill Zeito. Eventually, according to Freece, Lanza then took off running across the railroad tracks.
On cross-examination, Freece admitted that he had been convicted of falsely reporting an incident; he apparently lied to the police to shield a friend of his who had been involved in a fight, blaming the other person for starting it. Freece averred that he was telling the truth about the incident with Lanza, however.
The defense also called Jeanne Beno ("Beno"), the chief toxicologist for the Monroe County Medical Examiner, who opined that Lanza "probably had been under the influence of cocaine for some hours" prior to his death and that someone who is on a cocaine binge becomes "more likely" to exhibit a form of paranoia. However, Beno could not determine whether Lanza was a habitual user nor how he, or anyone else with that amount of cocaine in his system, would have actually behaved.
Zeito did not testify in his behalf, a decision which he now attributes to deficient performance by his defense counsel. The jury found Zeito guilty of second degree (intentional) murder as charged in the indictment. After finding that Zeito was a "vicious, violent and dangerous person," the trial court imposed a sentence of twenty-five years to life in prison.
Zeito's conviction was affirmed on direct appeal. People v. Zeito, 302 A.D.2d 923, 753 N.Y.S.2d 914 (App. Div. 4th Dept. 2003), lv. denied, 99 N.Y.2d 634, 790 N.E.2d 290, 760 N.Y.S.2d 116 (N.Y. 2003). Represented by counsel, Zeito collaterally attacked his conviction by means of a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") 440.10, alleging that trial counsel was ...