The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Petitioner Ray Brunson seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After trial by jury in New York State Supreme Court, Kings County, petitioner was convicted of murder in the second degree (N.Y. Penal Law § 125.25 ) and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03 ). The trial court sentenced the petitioner to concurrent prison terms of twenty-five years to life for the murder conviction and twenty years for the weapons conviction.
Petitioner unsuccessfully moved to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10 claiming ineffective assistance of trial counsel and improper jury instructions. The Appellate Division of the New York State Supreme Court, Second Department, affirmed the judgment and denied petitioner's claim that the trial court's jury charges were erroneous because they were unpreserved for appellate review and were without merit. People v. Brunson, 1 A.D.3d 375, 766 N.Y.S.2d 601 (2003). Leave to appeal to the New York Court of Appeals was denied. People v. Brunson, 1 N.Y.3d 569, 807 N.E.2d 899, 775 N.Y.S.2d 786 (2003). The Appellate Division of the New York State Supreme Court, Second Department, denied the petitioner's subsequent application for a writ of error coram nobis to vacate on the ground of ineffective assistance of appellate counsel. People v. Brunson, 16 A.D.3d 516, 790 N.Y.S.2d 609 (2005). For the reasons discussed below, the petition is denied.
On August 26, 2000, at approximately 8:00 a.m., the petitioner fatally shot and killed Cherise Taylor ("Taylor"). Taylor died of six gunshot wounds including one to the head. (R. 298--299.)*fn1 Although petitioner admitted that he had shot and killed the victim, he claimed that he was justified in doing so.
Shortly after the shooting, at approximately 10:00 a.m., petitioner went to see his girlfriend, Jasmine Deloatch ("Deloatch") and told her that he shot two people. (Id. at 57--58, 62--63.) He told her of the events leading up to the shooting: a man had threatened him with a knife and a girl accompanying the man snatched twenty dollars from petitioner and ran into a building. (Id. at 64, 95--97.) He stated that he chased the girl into the building and shot her with his handgun. (Id. at 65.) According to Deloatch's testimony, petitioner told her that after he had shot the girl in the abdomen, and as the girl begged for mercy, petitioner stood over her and fired again watching her head jump off the floor. (Id. at 58, 63, 65--66.)
On December 21, 2000, the petitioner was arrested and placed in an interview room around midnight. (Id. at 143--44, 146--49.) The following morning at 7:00 a.m., the assigned detective arrived at the precinct and advised the petitioner of his Miranda rights from a printed sheet of paper. (Id. at 167-69, 172-73.) The petitioner acknowledged his understanding by writing his initials after each warning and signing the bottom of the sheet of paper. (Id. at 172--73.) Petitioner then gave an oral and written confession. (Id. at 174--78, 198--200.) He subsequently reviewed his written statement and signed it. (Id. at 180.)
According to petitioner's statement, on the morning of the incident, Taylor, who had asked petitioner if he had any money to buy drugs, arranged to purchase drugs for herself and petitioner. (Id. at 179.) Taylor told him to wait, walked away, and returned with a male friend whom the petitioner did not know. (Id.) Petitioner gave Taylor $20 to buy crack cocaine. Both petitioner and Taylor's friend waited while she sought to buy the drugs. When she returned, all three went into a building to smoke the crack cocaine Taylor had just purchased. (Id.) Taylor's friend, who was standing next to her, pulled out a gun and pointed it at the petitioner demanding his money. (Id.) Petitioner gave him $140 and Taylor and her friend started to go up the stairs toward the roof. The petitioner stepped back toward the stairs leading downward but then turned around, pulled out a pistol, and began firing. (Id. at 179--180.) He saw Taylor fall to the floor as her friend ran up the stairs toward the roof. (Id. at 180.) Petitioner put his bicycle in the elevator and sent it down. He then ran down the stairs and retrieved it on the first floor and rode away. (Id. at 180.)
Later that afternoon, the petitioner repeated his confession on videotape to the Assistant District Attorney ("A.D.A."). (Id. at 182, 196, 260, 262, 267--268, 284.) The A.D.A. once again read the petitioner his Miranda rights prior to taking his videotaped confession. (Id. at 183.)
During the period between petitioner's arrest and the trial, Deloatch married him, visited him in jail sixty to seventy times and spoke to him on the telephone approximately twice a night. (Id. at 74--76, 79, 89--90, 97--98, 100, 102.) On October 29, 2001, the night before Deloatch was to testify, the petitioner called Deloatch and threatened to kill her, her mother, and her kids if she testified against him. (Id. at 77, 79--80, 98.) The Jury was made aware of these threats. (Id.)
At the close of the evidence, the trial court allowed petitioner to review the jury instructions prior to charging the jury. Petitioner had no objections to the jury charge. (Id. at 392.) On November 5, 2001, petitioner was found guilty of murder in the second degree and criminal possession of a weapon in the second degree.
Before raising a constitutional claim in federal court, petitioner first must give the state courts a full and fair opportunity to review the merits of the federal constitutional claim. See U.S.C. § 2254(b)(1); See also O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Rose v. Lundy, 455 U.S. 509 (1982). In order to properly preserve an issue for review, petitioner must have fairly presented the issue to the highest state court empowered to hear it. Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
The petitioner contends that the trial court violated his Fourteenth Amendment due process right to a fair trial by failing to properly instruct the jury in its justification charge. This claim was exhausted because it was presented to both the Appellate Division of the New York Supreme Court, Second Department and the New York Court of ...