The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Andre Norwood ("Norwood" or "petitioner") challenges his conviction on July 27, 2000, in New York State Supreme Court (Monroe County) on one count of second degree (depraved indifference) murder by means of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Docket No. 1. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c). See Docket No. 10.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The conviction here at issue stems from the shooting on December 31, 2000, of Delores Person ("Person" or "the victim"), a friend of Norwood who was living with him at the home of Melvin Smith ("Smith") and Mattie Kimble ("Kimble") in the City of Rochester. By Monroe County Indictment No. 44/2000, Norwod was charged with one count of second degree (depraved indifference) murder (N.Y. Penal Law § 125.25(2)).*fn1 Norwood was tried before a Jury before Justice Fisher in Monroe County Supreme Court in February 2000.
At trial, Smith testified that in the July 1999, he was living with his girlfriend, Kimble, and her children at his house on 136 Fulton Avenue in the City of Rochester. T.224-25.*fn2 The victim had moved in with Smith and Kimble in November of 1999. T.227. When Smith moved to Rochester from Milwaukee, Wisconsin, thirteen years ago, he had come with Kimble, her children, and Norwood, whom he had known since 1993. T.226. From 1993 up until January 1, 2000, Smith and petitioner had been friends. In fact, Norwood had been living with Person at Smith and Kimble's residence at the time of the shooting. T.227. According to Smith, he "just thought they [Norwood and Person] were friend [sic]"; the two of them slept in the same room but on separate cots. T.230.
On December 31, 1999, Norwood asked Smith to take him to a New Year's Eve party 210 Weaver Street, and Smith eventually agreed to do so. T.231-32. There was another passenger in the car, Chevoyia Stanley ("Chevoyia"), who lived across the street at 137 Fulton Avenue and was married to a woman named Ladonna Stanley ("Ladonna"). T.233-34. Smith left the party at "[a]bout 9:30, 9:35" by himself; Norwood and Chevoyia were still at the party. T.236. Smith eventually returned to the party "a little after ten" at this time with Person. T.237. He observed "some commotion" between "Norwood and another dude and Delores [Person][.]" T.238. Smith did not know who the third person was and did not "have any idea what the commotion was about[.]" T.239. It became clear to Smith that Norwood was no longer a welcome guest because he heard Chevoyia's mother and cousin "hollering, 'he got to go.'" T.239. Smith then decided to leave and take Norwood with him. Id. Person left with them, too. T.240.
Smith recalled that on the way home, Norwood "just kept on saying he [sic] going back over there because he think [sic] they [sic] playing with him." T.240-41. Smith did not respond to this at all. T.241. They got home a little after 11 p.m.; Person got out of the car, followed by Norwood, and they both went into the house. Id. Smith did not immediately go inside but turned around and was talking to Ladonna briefly. T.242, 243.
As Smith was going into the house, Norwood "was coming out of the door with the [shot]gun[,]" and he "was trying to put it [the gun] together." T.243-44. Smith stated that the murder weapon introduced at trial looked like the shotgun Norwood was holding but he could not say if it was the same gun. T.245. Smith had seen the gun before when a man running from the police had thrown it into the bushes near their house and Norwood had retrieved it. T.246. On the night of the incident, Smith "tried to grab [the gun] away from him" but Norwood "had took [sic] the other part and like he was going to hit [Smith] in the head with it." T.247. Norwood said to Smith, "[G]et back." Id. Smith was afraid that Norwood was going to hit him. Id. Norwood "just kept wanting to go back to this party." Id. Smith refused to bring him back. Norwood stepped outside; Smith locked the door behind him and told him, "cool down." T.248. The gun was still in two pieces. Id.
At this point, Smith testified, he, Kimble, and the children were inside the house, along with Person, who was sitting at the kitchen table next to the window listening to music. T.249, 250, 251. Smith and Kimble were in the front room. Id. About "twelve, fifteen minutes at the most" later, Smith walked into the kitchen to fix drink; it was closer to midnight. Smith looked over at the window and saw that the "shade was coming down" and then "[w]hen he saw the top of the gun come through there it just fell [sic] the whole shade." T.252. Norwood was holding the gun; Smith could see from petitioner's chest upwards, and Norwood was not wearing or mask or anything covering his face. T.253. Smith said, "Dre, what are you doing, what the f___ you doing. And he just kept on continuing what he was doing," which was pointing the gun at Smith, at first. T.254. Smith was "scared" so he ran to a small pantry off the kitchen. T.254-55. Before he ran, Person, the victim, "just hop[ped] up [from the table] and said, "[S]top playing, Dre." T.256.
As Smith was standing in the pantry, he heard the gun go "boom." T.255. After the bang, he "just saw her [the victim] sitting there for a minute and took [she] two small steps back and fell" in the middle of the room. T.257. Smith could see outside the pantry door and "could see Delores [Person] holding her side and she was saying, damn, Dre." T.256. Person was "[n]o more than six inches" away from the gun while she was doing this. Id. Smith waited for a minute because he was scared and did not know where Norwood was; he looked at Person and "she was just laying there squirming." T.258. Person "was trying to talk and [he] just tell [sic] her don't try." Id. It "looked like she was trying to reach for [him] [but] [he] couldn't do nothing [sic]." Id.
Smith did not see Norwood or the gun anywhere. T.259. Smith testified that Kimble called the police. Id.
Kimble, who was sitting in the front room while this was occurring, testified that she heard a very loud boom and right afterward heard Person saying, "[D]amn, Dre." T.313. Kimble could see Person "like falling back" as Kimble was on the phone calling the police. T.313-14.
Ladonna Stanley, the neighbor who lived across the street from Kimble and Smith, testified that on New Year's Eve, she heard a gun shot but did not pay it any attention because "[m]ost of the time on New Year's to bring in the new year people go out and shoot up in the air" in her neighborhood. T.353. Ladonna did not go see what was going on immediately; she just said, "[W]ell, they are cutting up already." Id. She then answered a knock at her door and found Norwood standing with a shotgun. T.354. Norwood came into the house and started to look at the door, looking like "he was in a hurry." T.355. Unbeknownst to Ladonna, Norwood previously had left some shotgun shells at her house on the TV stand, and that night, he started loading the shotgun with them. T.356-58. Ladonna asked Norwood what he had done. Norwood said, "I just shot up Mattie*fn3 [sic] in their motherfucking house."
Norwood kept loading his shotgun with shells. One fell and Ladonna kicked it under the couch; Norwood flipped the couch over to get it. T.359. Ladonna testified that she was scared.
T.360. There came a time when Ladonna started running for the door, and Norwood pushed her outside and locked the door behind her. Id. As Ladonna ran across the street to Kimble and Smith's house, she saw police coming up the street and told them Norwood was at her house.
Chevoyia Stanley testified that on New Year's Eve of 1999, he went over to his mother's house at 210 Weaver Street (the location of the party attended by Norwood) and then, at about 7:30 p.m., went over to Smith and Kimble's house. T.409. When he walked in the door, he "heard two gunshots" from the back of the house; he saw Norwood come into the house carrying a shotgun that looked like the murder weapon. T.409-10, 412. Norwood then broke the gun down into two pieces. T.410-11. Chevoyia asked Norwood if he was ready to go to the party.
T.412. Before they left, Chevoyia saw that Norwood had two or three shotgun shells in his pocket, and Chevoyia "told him that he can't go to the ...