MEMORANDUM OPINION AND ORDER
Petitioner Wande Brito brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction of depraved indifference murder in the second degree. In his petition, Brito argues that he was denied effective assistance of counsel at trial and on appeal in violation of the Sixth and Fourteenth Amendments.
On September 18, 2006, Magistrate Judge James C. Francis IV issued a Report and Recommendation (the "Report") recommending that Brito's petition be denied. Brito filed his objections to the Report in a timely manner and requested that the Court conduct a de novo review of certain issues contained in the petition pursuant to 28 U.S.C. § 636(b)(1). Having done so, and for the reasons that follow, the Court denies the petition.
Petitioner Wande Brito and his brother Jarlyn Brito were at a restaurant in the Bronx during the early morning hours of February 14, 1999. (Trial Tr. 412.) Adrian Medina was also at the restaurant with his uncle, Juan Ferreira. Id. Medina and Jarlyn Brito got involved in a fight outside of the restaurant, during which Ferreira was present.
(Trial Tr. 173--74.) Brito, who was wearing a black sweater, became involved in the altercation, aimed a gun at Medina's head and fired two shots, both of which missed. Id. The police arrived at the restaurant ten to fifteen minutes after Brito fired his gun at Medina. (Trial Tr. 174.)
Shortly thereafter, the police found Ferreira's body lying in the street several blocks from the restaurant. (Trial Tr. 308--09.) A police officer encountered Brito nearby, and when a police officer shouted to Brito, Brito began to run. (Trial Tr. 310--11.) Brito was apprehended and arrested not long afterwards. Id.
At trial, an eyewitness testified that he was sitting in a bread delivery truck near the scene of the crime when he saw a man in a black sweater chase after Ferreira, stab him once in the head and flee. (Trial Tr. 91--106.) This witness later identified Brito in a lineup. (Trial Tr. 97.) A second witness testified that he had seen the stabbing from a nearby first floor window. (Trial Tr. 322--24.) This witness testified that after an argument, a man in a black sweater stabbed Ferreira once in the head and then ran away. Id.
Brito was charged with intentional murder in the second degree for the killing of Ferreira, depraved indifference murder for the killing of Ferreira, attempted murder in the second degree for shooting at Medina and criminal possession of a weapon. At trial, Brito's counsel presented a defense based on misidentification, but also requested that the jury be charged on the alternative defense of justification. (Trial Tr. 35--37, 100--14, 325--32, 385--88, 417--24, 427--28.) At the close of evidence, Brito's trial counsel made a motion to dismiss the charges against his client "on the basis that it is not sufficient credible evidence [sic] for a jury to return a verdict of guilt in this case." (Trial Tr. 361.) The motion was denied. (Trial Tr. 361--62.)
The jury found Brito not guilty of intentional murder in the second degree and also acquitted him of attempted murder in the second degree for shooting at Medina. (Trial Tr. 571.) The jury convicted Brito of depraved indifference murder for the killing of Ferreira and criminal possession of a weapon in the second degree. Id. Brito was sentenced to twenty-three years to life in prison on the murder count and fifteen years on the weapon possession count, the sentences to be served concurrently. (Sentencing Mins. 13.)
Brito appealed his conviction to the Appellate Division, First Department, asserting that he received ineffective assistance of counsel at trial. Brito argued that his trial counsel was ineffective for requesting a justification charge that lacked evidentiary support and that was inconsistent with the misidentification defense. (Def's Br., attached as Ex. 1 to Aff. of Christopher J. Blira-Koessler.) The Appellate Division affirmed Brito's conviction on April 1, 2003, finding that his trial counsel's offering an alternative theory, although risky, did not constitute ineffective assistance of counsel at trial. People v. Brito, 758 N.Y.S.2d 23, 24 (N.Y. App. Div. 2003). The Court of Appeals denied leave to appeal. People v. Brito, 798 N.E.2d 351 (N.Y. 2003).
Brito then filed a motion before the trial court to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10 on the ground that he received ineffective assistance of counsel at trial. Brito again argued that trial counsel should not have requested the justification charge and added that his trial counsel should have raised the affirmative defense of extreme emotional disturbance. The trial court denied the motion on September 23, 2004. (Order dated Sept. 23, 2004, attached as Ex. 8 to Aff. of Christopher J. Blira-Koessler.) The Appellate Division denied leave to appeal. (Order dated Aug. 4, 2005, attached as Ex. 15 to Aff. of Christopher J. Blira-Koessler.)
Finally, Brito moved by a writ of error coram nobis for a new appeal on the ground that he received ineffective assistance of counsel on appeal. The Appellate Division denied the motion, the Court of Appeals denied leave to appeal, and neither court issued an opinion. People v. Brito, 836 N.E.2d 1156 (N.Y. 2005).
A district court judge may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten days of service of the recommendation, any party may file written objections to the magistrate's report. Id. Upon review of those portions of the record to which objections were made, the district court judge may "accept, reject, or ...