The opinion of the court was delivered by: Gershon, United States District Judge
Pro se petitioner Oscar Donaldson applies to this court under 28 U.S.C. § 2254 for a writ of habeas corpus, alleging that he is being held in custody in violation of the Constitution and laws of the United States pursuant to the judgment of a court of the State of New York. For the reasons set forth below, petitioner's application is denied.
Following a jury trial in New York Supreme Court, Kings County (Leventhal, J.), petitioner was convicted of one count of murder in the second degree (depraved indifference), N.Y. Penal Law § 125.25, in connection with the beating death of his estranged wife, Emma Feliciano. He was sentenced on January 27, 2000 to a prison term of twenty-four years to life.
Taken in the light most favorable to the prosecution, the evidence at trial established the following facts: Petitioner married Emma Feliciano in 1992. In 1999, Ms. Feliciano asked petitioner to leave the marital residence after an incident in which he became violent with her. Petitioner moved out, but continued to socialize with his wife on occasion. On Friday, September 1, 2000, both petitioner and Ms. Feliciano attended a party at the home of a mutual friend. Around 9:30 p.m., the party traveled to a nearby restaurant. Petitioner consumed numerous beers, as well as tequila, during the course of the evening. Petitioner and Ms. Feliciano left the restaurant together, in petitioner's car, and drove to petitioner's apartment. On the way there, petitioner found a photograph of a man in Ms. Feliciano's purse and became angry. After they arrived at his apartment, he began to beat her repeatedly with his fists. Afterward, petitioner told the police that he could not remember what happened next, but that, when he woke up the following morning, Ms. Feliciano was lying in bed next to him, dead. The medical examiner testified that the cause of death was a combination of beating and asphyxiation. In a videotaped interview with an Assistant District Attorney, petitioner stated that he "lost control" upon seeing the photograph in Ms. Feliciano's purse. Dr. Robert Goldstein, a psychiatric expert who testified as a witness for petitioner, stated that petitioner is alcohol dependent and was so intoxicated at the time of Ms. Feliciano's death that he could not have formed a specific intent to cause her harm.
At the conclusion of petitioner's case, defense counsel moved pursuant to N.Y. Criminal Procedure Law § 290.10 for a trial order of dismissal of the depraved indifference murder count, arguing that the count should be reduced to reckless manslaughter because the depraved indifference murder statute, as applied to petitioner, violated the Equal Protection Clause of the Fourteenth Amendment. Defense counsel did not, however, argue that the evidence was insufficient to support a finding of recklessness. The motion was denied.
Following his conviction, petitioner moved the trial court to set aside the jury's verdict, claiming, inter alia, that the statute under which he was convicted was unconstitutional as applied to him. He argued that New York's depraved indifference murder statute is indistinguishable from its reckless manslaughter statute and that, as a result, the State's application of the depraved indifference murder statute to him, when similarly situated defendants are subject only to the reckless manslaughter statute, violated the Equal Protection Clause of the Fourteenth Amendment. The court rejected petitioner's argument, holding that the two statutes are distinguishable and that a reasonable person would have known that defendant's conduct in beating his wife and obstructing her air supply created a grave risk of death within the meaning of the depraved indifference murder statute. "In this case," the court stated, "the beating and the act causing asphyxiation clearly could have been reckless in light of the defendant's statements that he lost control and could not think properly. There is nothing unreasonable or vague that would not give a reasonable person notice that these circumstances create a grave risk of death." People v. Donaldson, 194 Misc. 2d 614, 616 (N.Y. Sup. Ct., Kings County 2003).
On direct appeal to the Appellate Division, Second Department, petitioner raised two claims:
(1) the evidence was legally insufficient to support the recklessness element of depraved indifference murder and was against the weight of the evidence; and (2) the sentence was unduly harsh. Petitioner argued that, although not preserved for appellate review under New York law, his insufficiency of the evidence claim should be heard by the Appellate Division "in the interest of justice." In a footnote to his appellate brief, petitioner argued, in the alternative, that his trial counsel was constitutionally ineffective for failing to preserve the claim. By order dated October 24, 2005, the Appellate Division affirmed petitioner's conviction. People v. Donaldson, 22 A.D.3d 765 (2d Dep't 2005). With respect to petitioner's insufficiency of the evidence claim, the Appellate Division held that the claim was unpreserved for appellate review. Id. at 765. The Appellate Division went on to state that:
In any event, viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses. Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record. Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence.
Id. (citations omitted). Petitioner's application for leave to appeal to the New York Court of Appeals was denied on January 31, 2006.
Petitioner has not sought any other post-conviction relief in the state courts.
Petitioner filed a petition for a writ of habeas corpus dated March 24, 2006 with this court. In it, he asserts two claims: (1) his conviction for depraved indifference murder was based on legally insufficient evidence; and (2) he was denied the effective assistance of trial counsel.