The opinion of the court was delivered by: Deborah A. Batts, United States District Judge
PARTIAL ADOPTION OF REPORT AND RECOMMENDATION
On March 16, 2005, United States Magistrate Judge Henry B. Pitman issued a Report and Recommendation ("Report"), recommending that Petitioner's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 be denied in its entirety. (Report at 26). Pursuant to 28 U.S.C. § 636(b)(1)(C), "[w]ithin ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations." 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b) (stating that "[w]ithin 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations"). Where no timely objection has been made, "a district court need only satisfy itself there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). After conducting the appropriate level of review, the Court may then accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. 28 U.S.C. § 636(b)(1)(C); see also Local Civil Rule 72.1(d). Petitioner has raised four objections*fn1 to Judge Pitman's Report, and Respondent has raised one objection. The Court therefore will review the objected-to portions of the Report de novo.
The facts in this matter are largely set forth in the Report and unless relevant will not be reiterated here.
A. Ineffective Assistance of Counsel
Petitioner objects to Judge Pitman's recommendation that his ineffective assistance of counsel claim be denied. (Petitioner's Objections ["Pet.'s Obj."] at 3-6.) Specifically, Petitioner asserts that his "defense counsel's performance dropped below an objective standard of reasonableness in pursuing a demonstrably weak misidentification defense and failing to pursue . . . the justification defense." (Pet.'s Obj. at 3.)
Under Strickland v. Washington, an attorney fails to provide effective assistance of counsel only if (1) his or her performance "fell below an objective standard of reasonableness" in light of prevailing professional norms, and if (2) this deficient performance prejudiced the defense, such that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 687-88, 694. Petitioner satisfies neither of the two prongs under the Strickland test.
The decision by Petitioner's defense counsel to raise a misidentification defense instead of the justification defense did not fall below an objective standard of reasonableness. "A lawyer's decision not to pursue a defense does not constitute deficient performance if, as is typically the case, the lawyer has a reasonable justification for the decision." DeLuca v. Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996). Judge Pitman cites Gonzalez v. Bennett, 2001 WL 1537553 (2001), another case in which a habeas petitioner believed that his counsel's failure to raise a justification defense at trial constituted ineffective assistance. The Gonzalez court stated:
To the extent . . . that [petitioner's] challenge is based on hind-sight and disappointment, it does not warrant relief . . . . The record before the Court provides no basis for the Court to determine that the decision not to raise justification as a defense was not strategic, or that at the time [petitioner] disagreed with the strategy undertaken by trial Counsel. Indeed, it would not be an unreasonable strategy to select and present one theory of defense rather than introducing potentially confusing testimony to support two inconsistent statements.
Gonzalez, 2001 WL 153753 at *8 (internal citations omitted) (cited in report at 20-21). See also Schmidt v. United States, 173 F.3d 846, 846 (2d Cir. 1999) (questions of trial strategy are not to be second-guessed by the habeas court); United States v. Eisen, 974 F.2d 246, 265-66 (2d Cir. 1996) (decisions by defense counsel which fall within the ambit of trial strategy shall not be actionable in a habeas petition).
In Petitioner's case, as in Gonzalez, Defense Counsel reasonably determined that raising a justification defense alongside a misidentification defense would have confused the jurors. Asserting that Petitioner was justified in using deadly force against Brown would have contradicted any assertion that Petitioner was not the person who assailed Brown in the first instance. It is within a reasonable lawyer's discretion to determine that raising such contradictory defenses would confound a jury and therefore be detrimental to a criminal defendant's case. Petitioner fails to satisfy the first prong of the Strickland test.
Petitioner also does not succeed on the second prong of Strickland, which requires there to have been a reasonable probability that Defense Counsel's performance was so deficient that, but for counsel's unprofessional errors, the result of the trial would have been different.*fn2 Strickland, 466 U.S. at 694. In this case, Petitioner must demonstrate that a reasonable jury might have decided in his favor on a properly argued justification defense.
Under New York law, a defendant who uses deadly force may avail himself of the justification defense "only if, among other things, (1) he subjectively believes that the use of deadly force is necessary, (2) a reasonable person in defendant's position would believe that the use of deadly force is necessary, and (3) the defendant does not 'know [ ] that he can with complete safety as to himself and others avoid the necessity of [using deadly force] by retreating.'" Brown v. Artuz, 124 F.3d 73, 81 (2d Cir. 1997) (quoting N.Y. Penal Law § 35.15(1)-(2)). Assuming arguendo that Petitioner subjectively believed his use of deadly force was necessary, Petitioner could not have satisfied the other two elements of the justification defense.
Even if, as Petitioner asserts, "Brown had previously thrown a bottle at him, had driven recklessly around a corner, had parked his car in a threatening manner, had exited his car in a hurry with a Club in his hand, and was approaching his car visibly angry and upset" (Pet.'s Obj. at 4), it was not reasonable for him to have believed that deadly force was necessary. Neither Brown's previous altercation with Petitioner nor Brown's quick, angry pace as he made his way to Petitioner's car reasonably merited Petitioner's belief that he would be subject to grave harm or death unless he shot a firearm at Brown. Cf. People v. Stridiron, 33 N.Y.2d 287, 291-92 (1973) (finding use of deadly force unreasonable where victim struck defendant with a pool cue and retreated); People v. Norwood, 133 A.D.2d 423, 423-24 (2d Dept. 1987) (justification defense not reasonable where defendant shot victim who approached him holding a brick); People v. Lopez, 113 A.D.2d 475, 481 (2d Dept. 1985) (unreasonable for defendant to have shot victim five times after victim lunged at him with a spike-like object).
Petitioner insists that Brown's having carried a club warranted his reasonable belief that deadly force was necessary, but he does not specifically controvert Judge Pitman's finding that "[t]here was no testimony that Brown raised the Club in a threatening manner or made any statements that could reasonably have led [P]petitioner to believe that Brown was going to use the Club to strike him." (Report at 16.) To the contrary, the record indicates that Petitioner was in the shelter of his own car when Brown approached him with a club in his hand. Petitioner could not reasonably have thought while in the shelter of his car that deadly force was necessary to avoid his assailant approaching him with a club.
Petitioner also would not have been able to prove to a jury that he had no "duty to retreat". Though Petitioner alleges that his car was parked at an angle that partially blocked its mobility (Tr. at A 165, A 235-36, A 289-91), both DeWindt and Brown testified that after the shooting, Petitioner drove his car away from the scene. (Tr. at A 53, A 171.) Petitioner's flight ...