The opinion of the court was delivered by: Gershon, United States District Judge
Pro se petitioner Scott Flowers 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 (Flaherty, J.), petitioner was convicted of one count of murder in the second degree (depraved indifference), N.Y. Penal Law § 125.25, and one count of criminal possession of a weapon in the second degree, N.Y. Penal Law § 265.03, in connection with the shooting death of Andre Holly. He was acquitted of an additional count of murder in the second degree (intentional murder), N.Y. Penal Law § 125.25. On February 8, 1999, he was sentenced to concurrent prison terms of eighteen years to life on the murder count and seven and one-half to fifteen years on the weapons count.
Acting pro se, petitioner made a motion, dated July 25, 1999, to vacate his judgment of conviction pursuant to N.Y. Criminal Procedure Law § 440.10 on the following grounds: (1) the intentional murder count and the depraved indifference murder count should have been submitted to the jury as alternatives; (2) the trial court's failure to instruct the jury on the defense of intoxication constituted error; (3) petitioner was denied the right to testify before the Grand Jury; (4) petitioner's pretrial counsel was ineffective; and (5) petitioner's trial counsel was ineffective. By order dated December 21, 1999, the trial court denied the motion in its entirety, holding that petitioner's claims either lacked a factual basis to warrant consideration or were matters of record that, pursuant to N.Y. Criminal Procedure Law § 440.10(2)(b), could be reviewed only by an appellate court on direct appeal.
With the assistance of counsel, petitioner filed a direct appeal with the Appellate Division, Second Department, on April 27, 2001, raising one claim: the evidence at trial was insufficient to establish that he had a reckless state of mind at the time of the shooting, which is an essential element of depraved indifference murder, because the only reasonable view of the evidence was that he acted intentionally. On September 25, 2001, petitioner moved pro se for an extension of time to file a supplemental brief and to expand the record on appeal to include the minutes of the November 18, 1998 pretrial calendar. Petitioner claimed that, on that date, his trial counsel reached an agreement, pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974), with the prosecutor and presiding judge, outside of his presence, concerning the extent to which he would be subject to impeachment by cross-examination about prior bad acts, should he testify. Later, petitioner's appellate counsel joined the motion, but it was denied by the Appellate Division on November 27, 2001. By order dated December 24, 2001, the Appellate Division, rejecting petitioner's insufficiency of the evidence claim, affirmed his conviction. The Court stated:
Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt of depraved indifference murder beyond a reasonable doubt. The People adduced evidence that the defendant acted recklessly with attendant circumstances that objectively created a very grave and substantial risk of death. Eyewitnesses testified that after a minor verbal altercation, the defendant, who had been drinking and smoking marijuana, pursued the victim with a gun, which was ultimately discharged in the victim's face at close range, causing the victim's death. A jury's verdict should be accorded great weight, and if, as here, its conclusion is rational, the court is "not free to vacate a conviction based on a finding of recklessness merely because [it] consider[s] that a finding of intent would have been more plausible in light of the evidence."
People v. Flowers, 289 A.D.2d 504, 504 (2d Dep't 2001) (citations omitted). On March 29, 2002, the New York Court of Appeals denied petitioner's application for leave to appeal, finding that "there is no question of law presented which ought to be reviewed by the Court of Appeals." People v. Flowers, 97 N.Y.2d 754, 754 (2002) (Rosenblatt, J.).
Subsequently, petitioner filed a motion in the Appellate Division for a writ of error coram nobis, claiming ineffective assistance of appellate counsel. Petitioner argued that his appellate counsel was ineffective for failing to request the minutes of the November 18, 1998 pretrial calendar and failing to raise a claim that his right to be present for the Sandoval discussion had been denied. The motion was denied by the Appellate Division on March 31, 2003. In his application for leave to appeal the Appellate Division's decision to the Court of Appeals, petitioner asserted an additional ground for his ineffective assistance of appellate counsel claim, that appellate counsel failed to raise a claim of ineffective assistance of trial counsel based on trial counsel's failure to argue that New York's depraved indifference murder statute violated his rights to equal protection and substantive due process. The application was denied on June 10, 2003. A second motion for a writ of error coram nobis, raising the same grounds as the first motion, was denied by the Appellate Division on November 17, 2003, and leave to appeal to the Court of Appeals was denied on January 13, 2004.
Petitioner now seeks a writ of habeas corpus from this court. He raises the following claims:
(1) petitioner was denied the effective assistance of appellate counsel because counsel failed to raise a claim that petitioner was denied the right to be present at a material stage of the trial; (2) petitioner was denied the effective assistance of appellate counsel because counsel failed to raise a claim that New York's depraved indifference murder statute violated petitioner's rights to equal protection and substantive due process; and (3) the evidence at trial was insufficient to establish that petitioner had a reckless state of mind at the time of the shooting, which is an essential element of depraved indifference murder, because the only reasonable view of the evidence was that he acted intentionally.*fn1
Taken in the light most favorable to the prosecution, the evidence at trial established the following facts: On July 3, 1997, at approximately 9 p.m., Yemi Forest went to hang out on Hollis Avenue, in Queens, where he ran into petitioner, an acquaintance from the neighborhood. A group of women invited Forest and petitioner to join them later in the evening at a club in Nassau County called Moments. Forest went home to change, then returned to Hollis Avenue to meet petitioner. On his way there, Forest saw his friend Andre Holly and invited him to accompany himself and petitioner to the club. Around midnight, Forest and Holly, driving in Forest's gray Ford van, followed petitioner to his house so that petitioner could drop off his car, a gray Volvo. Petitioner then got into Forest's van and the three men drove to Moments. They were denied admission to the club, however, because it was overcrowded. They sat in Forest's van for a while, drinking beer and smoking marijuana. Eventually, they decided to go to a club in Jamaica, Queens, called Colors.
Forest, Holly, and petitioner arrived at Colors sometime between 2:30 a.m. and 3:30 a.m. As the three men exited the van, petitioner accidentally closed the door on Holly's hand. Holly began yelling and cursing at petitioner, and an argument ensued. After about twenty minutes, the club owner, concerned about the disturbance, came outside and gave Holly a bandage for his hand. Petitioner then asked Forest to take him back to his car. All three men got in the van and drove in silence to where petitioner's Volvo was parked.
When they got there, petitioner got out of the van and told Holly that he wanted to fight him. Holly got out of the van, argued with petitioner for a few minutes, then got back in the van and drove away with Forest. Forest and Holly stopped the van, a few minutes later, on 204th Street in Queens. Petitioner pulled up next to them in his Volvo and tried to coax Holly out of the van to fight. Forest tried to calm petitioner down but, when he was unsuccessful, drove away with Holly in the van.
At approximately 4:30 a.m., Forest and Holly pulled up to Holly's house, where they sat in the van, talking. A few minutes later, Ian Jacks, who knew Forest and Holly from the neighborhood, arrived in his truck and parked one car length behind Forest's van. Within moments, petitioner, traveling at a high rate of speed in his Volvo, pulled up alongside Forest's van. He got out of the car, leaned into the van through the driver's side window, which was open, and urged Holly, who was seated in the passenger's seat, to get out of the van and fight him. Holly got out of the van and walked around to the driver's side to face petitioner. Forest remained seated in the driver's seat of his van, and Jacks remained seated in the driver's seat of his truck.
There was conflicting testimony at trial about what happened next. Forest testified that petitioner pulled out a gun, and Holly said, "What are you going to do?" Trial Transcript at 739-40. Jacks testified that Holly said, "'What, you are going to kill me?' or 'What, you are going to shoot me?', something to that effect." Trial Transcript at 590. Forest testified that petitioner, standing approximately eight feet away from Holly, fired the gun once in the direction of Holly and Forest, who was seated in the van behind Holly. The bullet hit Holly in the head, traveling through his left eye. Jacks gave a similar account, but testified that petitioner was standing only three feet away from Holly at the time of the shooting. In contrast, petitioner testified that it was Holly who had brandished the gun, that petitioner attempted to wrest it from him, and that it went off during the struggle between the two men, striking Holly in the left eye. Forest testified that after the shooting, petitioner approached him in the van and said, "You didn't see nothing." Trial Transcript at 663. Petitioner denied saying that.
Petitioner called three character witnesses, each of whom testified about his reputation for peacefulness. On cross-examination, these witnesses acknowledged that petitioner had been convicted of misdemeanor weapons possession.
Forest and Jacks each admitted having numerous criminal convictions, including convictions for drug sales. Forest testified that Holly, to whom he referred by the nickname "Stone" throughout his testimony, had been a good friend of his, but that petitioner was merely an acquaintance. Jacks testified that he was so frightened by the sight of the gun, he was not able to focus on the details of what transpired between petitioner and Holly. When asked whether he recognized Holly's voice just prior to the shooting, Jacks responded, "Not at the time, I didn't. I wasn't paying attention at the time-- I blacked out. I was like oh, wow, this just happened. I can't believe it, that type of thing." Trial Transcript at 550-51. During her summation, defense counsel argued that such evidence casts doubt on the credibility and accuracy of the testimony of Forest and Jacks. She also noted that both Forest and Jacks, after having an opportunity to consult with each other at the scene, had told police that the gun used was a .25 caliber, when it was undisputed at trial that the gun was a .38 caliber, and that both Forest and Jacks testified that petitioner aimed and fired the gun with his right hand, when it was undisputed that petitioner was left-handed.
The medical examiner who performed an autopsy on Andre Holly testified that the pattern of gun powder residue on Holly's face indicated that the muzzle of the gun was two to two and one-half feet away from Holly at the time that it was fired, and a police officer who responded to the crime scene after the shooting testified that he found a broken gold chain lying on the ground near the shoulder of Holly. Defense counsel argued during summation that that testimony supported petitioner's account that the gun went off during a struggle.
The medical examiner also testified that, at the time of his death, marijuana was present in Andre Holly's system and his blood alcohol level was two and one-half times the legal limit for driving. Defense counsel argued during summation that "Andre was two times what the legal limit is for drunk. Scott was drunk. And also fueled by what I call 'post-midnight macho,' a certain madness that seems to take over young men."
The trial judge instructed the jury that it must consider the intentional murder charge and the depraved indifference murder charge in the alternative, together with the lesser included offenses of manslaughter in the first degree (intentional manslaughter), N.Y. Penal Law § 125.20, and manslaughter in the second degree (reckless manslaughter), N.Y. Penal Law § 125.15.
Specifically, the judge stated: "Now, jurors, with respect to the four charges, you may find the defendant not guilty of all four charges, or you may find the defendant guilty of only one of those charges. You may not find the defendant guilty of more than one of those charges." Trial Transcript at 1188. The judge further instructed the jury to consider the charges in the following order: first, ...