The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Jameel Williams ("Williams"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on one count of second degree murder. The parties have consented to the disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
II. Factual Background and Procedural History
Williams was convicted after a jury trial of second degree (intentional) murder (N.Y. Penal Law § 125.25(1)) in connection with the beating death of Daryl Bryant ("Bryant") on the evening of January 6, 1995. The prosecution presented the testimony of two eyewitnesses, Dorothy Walker ("Walker") and her niece, Racheal Johnson ("Johnson"). Walker testified that she and Johnson were driving to the supermarket at about 7:45 p.m. when she saw "two people wrastling [sic], fighting in the street" at the corner of Wakefield and Holden in the City of Buffalo. T.84.*fn1 Walker stated that one of those individuals was in the courtroom that day, and she identified Williams. T.85. Walker testified that she gave a description to the police at the time of the incident, describing the person as a black male between 5'8" and 5'10", and 145 to 160 pounds, wearing a red jacket, white shirt, black pants and black "sneaker boots." T.85-86. Walker was permitted to testify that on June 30, 1995, when she accompanied her niece to the Wade*fn2 hearing, she saw Williams in the hallway of the courthouse and identified him as Bryant's assailant. T.87-88. On cross-examination, Walker admitted that there were police officers escorting him at the time and that that was the first occasion she had ever identified Williams as being involved in the incident. T.136-37.
According to Walker, when she first saw Williams and Bryant in the street, they were in a "wrastling position," with Williams on top. T.91. Walker said that the "deceased pulled the defendant's scrotum," and Williams said, "Let go of my nuts." T.91. At that point, "they really hit the ground." Id. Williams was "punching [Bryant] in the face and then he had his neck a couple times choking him." T.91-92. Williams punched Bryant in the head and face "like a dribble [sic]," about five or six times, with both hands. Walker said to Williams, "Please stop beating on him before you kill him." T.93. Williams retorted that he "meant to kill him" because Bryant "owed him ten dollars for some drugs." T.95. Walker heard Bryant tell Williams that he would try to get his money. Walker also told Williams that she was going to call the police on him. In response, Williams cursed at her, calling her a "bitch" and a "whore." He told her to "go ahead . . . do what [you] have to do[.]" T.94.
At some point, Williams stopped punching Bryant and walked across the street to the Wakefield Grocery Store, from which Johnson was exiting. T.97. A few minutes later, Williams returned to the scene, pumping his fists in the air like "somebody that won a battle." T.98. He walked over to the prone victim, adjusted his head and then kicked him in the head twice. T.99. Williams then jumped on the victim's chest and stomach and then "started that - - that fist moving thing again." T.99.
Once Walker and Johnson realized that they did not have ten dollars to pay for the victim's debt, they went over to a drug store and attempted to call the police but were unable to use the pay phone. By the time they returned to the scene, the police had already arrived. T.101.
Johnson testified that as she was driving to the store with her aunt, she noticed two black men wrestling in the street at the corner of Holden and Wakefield. T.194. She said that Williams, who was wearing black pants, black "sneaker boots," a white T-shirt, and a red jacket, was on top of the other man. T.197. Williams "straddled" the other man, punched him with both hands "[a]t least ten to fifteen times," and choked him. T.198. Johnson stated that the victim was not punching back. Johnson confirmed that when Walker told Williams to stop before he killed the man, Williams said, "That's what I want to do." T.199.
When Johnson returned to the scene after attempting to call the police, Williams had "come back to the body and stomping him and kicking him[.]" T.201. The victim was "flat on his back" as Williams "jumped up and down on his stomach with one foot, and in his face," "quite a few times." T.202. At that point, Johnson and Walker went to another location to try to call the police. Johnson testified that she never observed the victim choking Williams, and she never saw both men choking each other simultaneously. T.204.
Dr. Baik, the medical examiner, testified that the cause of death was a blunt force injury to the head and neck area. There was a "triangular shaped abrasion" on the right side of the face which appeared to have been "inflicted with [a] sharp end of a shoe." T.328. There were numerous bruises on the victim's head and face and there was external trauma to the victim's neck. The victim also had three broken teeth and one missing tooth. The cerebellum demonstrated a prominent pressure cone; the significance of this was that "after the head injury he was beaten so many times and . . . there is no other way for the brain to go, it's moving to the central part of the brain[.]" Dr. Baik testified that, to a reasonable degree of medical surgery, Bryant died of blunt force trauma to the head and neck area, which could have been caused by a blunt object or a fist or by kicking. T.338. Although there was evidence that Bryant had been choked for a period of time, the cause of death was not strangulation. T.339. The medical records indicated that the doctors had inserted a chest tube while Bryant was being treated at the emergency room, so he was alive for a short period of time after the beating. T.339. The toxicology reports indicated that the victim had used an unknown amount of cocaine prior to his death. T.340. Dr. Baik opined that cocaine use did not cause swelling of the brain and stated that the victim's cocaine use did not contribute to the cause of death. T.348-49.
Alice Kirk ("Kirk") testified for the defense that her next-door neighbor was Sharon Garland ("Garland"), Williams's aunt. T.374. Williams used to live at Garland's house; Kirk knew him as "one of the neighborhood children." Kirk stated that on the evening of the incident, two people ran past her house. T.375. When she looked down the street, she could see them standing on the corner and they appeared to be "children wrassling [sic] . . . playing around in the snow." T.375, 388. Kirk later learned that something more serious was going on when her niece, Erica Brown ("Brown"), came in the house and told her "to call the rescue squad, they can't get the little boy to wake up." T.376. Kirk then looked out her window and saw one of the individuals administering CPR to the other person; she was not able to identify them but she could "clearly see what they were doing." Id. Kirk averred that the person doing CPR was not emergency medical personnel since it was before the ambulance arrived. T.377.
On cross-examination, the prosecutor asked Kirk whether it was true that she never said anything to him or to the police about witnessing one of the individuals performing CPR. T.392-93. Kirk stated she did not recall. T.393. After argument out of the presence of the jury and over defense counsel's strenuous hearsay objection, the trial court allowed the prosecutor to introduce the tape of Kirk's 911 call to refresh her recollection as to whether she said to the operator, "Are they still beating him?" in response to Brown's observation that one of the individuals on the corner was being beaten. See T.393-406. Kirk testified that she never personally observed anyone beating anyone else at the corner of Wakefield and Holden that night. T.409. Kirk admitted that she had a criminal record, including convictions for petit larceny, disorderly conduct, and obtaining public assistance by fraud. T.407-09.
Valerie Patterson ("Patterson") testified for the defense that Williams was her cousin and that he stayed "off and on" at Garland's house. T.410-11. Patterson testified that she also was living with her son at Garland's house. T.411. Patterson testified that Williams had received a teal, green and orange Miami Dolphins jacket for Christmas that year and that after he received it, she never observed him wearing any other colored jackets. T.413. Patterson stated that, sometime between 7 p.m. and 9 p.m., Williams came into the house and took her into the kitchen. He was wearing his Miami Dolphins jacket. T.414. Patterson said that he was "nervous" and "sweating" and "crying," and he appeared to have scratches around his chin area and his neck. T.414, 421. Williams said that he had "been in a fight and he didn't really know what was going on, but he wanted [her] to go outside and check to see if everything was all right." T.416. Williams told her that he tried to help the person with whom he was fighting get up by administering CPR, but "the guy didn't get up." T.417. On cross-examination, Patterson admitted that Williams did not say anything about choking or strangling. T.421. Patterson denied that she told defense counsel that an individual named Antoine Parker gave somebody CPR that night. T.422.
Verniata Britt ("Britt"), Williams's mother, testified for the defense that Williams lived with her sister, Sharon Garland. Britt stated that she had bought Williams a Miami Dolphins jacket for Christmas and that she knew that he did not own a red jacket. When she saw Williams on the day after the incident, he was wearing the Miami Dolphins jacket. He told her that he had "gotten in a fight with someone" and that "something bad happened." T.437. He did not say that he had killed someone. Id. Britt admitted that she had been convicted of attempted petit larceny for the misuse of food stamps. She admitted that she lied on her application for welfare benefits by not disclosing that she was employed and had pled guilty to third degree grand larceny regarding this welfare fraud. T.442-43.
Garland, Williams's aunt, testified for the defense that Williams was her nephew and that he stayed at her house frequently. T.447. She testified that she never observed Williams wearing a red jacket and that he did not have one at her house. T.448.
Williams, who was eighteen years-old at the time of the incident, testified that prior to the altercation with Bryant, he had never been convicted of a crime. Prior to trial he pled guilty to the attempted unauthorized use of a motor vehicle, a misdemeanor. T.461. Williams denied that he owned a red jacket or black sneaker boots. T.464. He testified that he received CPR training when he was working as a lifeguard in a summer youth program several years ago.
T.466. Williams knew Bryant from the neighborhood, where he saw Bryant "bully a couple people around" and "get in fights with a couple store owners." T.468. According to Williams, Bryant's drug use was "just a big joke to him" since he routinely would get high out in public. Id.
Williams recounted the events of the night of January 6 consistently with his statement to the police given, in the presence of counsel, when he voluntarily turned himself in.*fn3 In support of a justification defense, Williams testified that he and the victim had argued about the fact that Bryant had sold him a "messed up VCR" and would not refund his money. T.473. Bryant said, "You all think because I get down that you all can just run over me." Id. Then Bryant "walked up, snatched [his] necklace and . . . whacked [him]" " right in the eye[.]" T.473-74. Williams stated that he was wearing his Miami Dolphins jacket, teal green pants, and brown boots that night. T.474. Williams chased Bryant and eventually caught up with him. As he grabbed his necklace back, Bryant "whacked [him] again," and that was when the fight started. Williams claimed that at that point, he had not thrown any punches; Bryant started kneeing him, and they fell to the ground, at which point Bryant started choking him. In a "last minute burst of energy," Williams "just slid [his] arm under and hit him" in the temple and "slam[med] him to the ground." T.476. According to Williams, they were "rolling around in a circle" and Bryant had both hands wrapped around his neck. T.477. Williams stated that he believed that Bryant "would have killed [him]." Id. Williams testified that when he "felt the pressure slowly sliding off [his] neck," he let Bryant go. T.478. At that point, Williams realized there was "something wrong" so be started doing CPR on Bryant. He testified that he "panicked" and was telling the people around him to call an ambulance. Williams stated that he did not wait to talk to the police because he was "paranoid" that they were going to arrest him. T.481-82. He stated that he did not intend to kill or seriously injure Bryant and that he only hit him once. T.478-79, 486.
The jury convicted Williams of second degree murder as charged in the indictment. He was sentenced to twenty-five years to life in prison. Represented by new counsel, Williams brought a motion to vacate the judgment pursuant to New York Criminal Procedure Law § 330.30 alleging that trial counsel was ineffective. The trial court denied Williams's application. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction on direct appeal. People v. Williams, 273 A.D.2d 824, 710 N.Y.S.2d 214 (App. Div. 4th Dept.), leave denied, 95 N.Y.2d 893, 738 N.E.2d 790, 715 N.Y.S.2d 386 (N.Y. 2000). This habeas petition followed. For the reasons set forth below, Williams's request for a writ of habeas corpus is denied.
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
B. Merits of the Petition
1. Ineffective Assistance of Trial Counsel
Williams contends that trial counsel committed several errors that were so serious as to prejudice his right to a fair trial and deny him the effective assistance of counsel as guaranteed by the Sixth Amendment. Williams has asserted a long list of alleged errors; in particular, Williams faults counsel for (1) failing to call an expert witness to testify that the cocaine present in the victim's body contributed to his death; (2) failing to call eyewitnesses in his behalf; (3) failing to properly cross-examine Walker and to move for a mistrial based upon her testimony; and (4) failing to argue that Williams acted in self-defense.
In order to prevail on a claim of ineffective assistance of counsel within the framework established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), a habeas petitioner must satisfy a two-part test. First, the petitioner must demonstrate that counsel's performance was so deficient that counsel was not functioning as "counsel" within the meaning of the Sixth Amendment to the Constitution. Id. at 688. In other words, the petitioner must show that his attorney's performance "fell below an objective standard of reasonableness." Id. Second, the petitioner must show that counsel's deficient performance prejudiced him. Id. at 694. To establish the "prejudice" prong of the Strickland test, the petitioner must show that a "reasonable probability" exists that, but for counsel's error, the outcome of the trial would have been different. Id. at 694. The issue of prejudice need not be addressed, however, if a petitioner is unable to demonstrate first that his counsel's performance was inadequate. Id. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one.").
b. Alleged Grounds of Ineffectiveness
1.) Failure to Call Expert Witness
Williams contends that trial counsel should have retained an expert witness to testify that the victim's ingestion of cocaine prior to the incident affected his behavior and contributed to his death. When reviewing trial counsel's performance, a habeas corpus court must be "highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. The court must not rely upon hindsight and second-guess counsel's unsuccessful trial strategy. Id. Indeed, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" Id. at 689-90. The Second Circuit has held that "the decision to call or bypass particular witnesses is peculiarly a question of trial strategy, United States v. Matalon, 445 F.2d 1215, 1219 (2d Cir.), cert. denied, 404 U.S. 853 (1971), which courts will practically never second-guess." United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir. 1974). "'Where an expert would only marginally assist the jury in its role as fact finder, an attorney's decision not to call an expert is more ...