The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
This Court denied the petition for a writ of habeas corpus filed by petitioner Jameel Williams ("Williams" or "petitioner") challenging his conviction on one count of second degree murder (N.Y. Penal Law § 125.25(2)) on December 20, 1995, following a jury trial in New York State Supreme Court (Erie County). Represented by counsel, Williams sought a certificate of appealability from the Court of Appeals for the Second Circuit. That court granted a certificate of appealability limited to the issue of whether Williams "received ineffective assistance of counsel because his attorney failed to argue that he was entitled to utilize deadly force to effectuate an arrest pursuant to New York Penal Law § 35.30(4)" and remanded the case "to allow the district court to address [that claim] in the first instance[.]" The Second Circuit denied a certificate of appealability as to Williams' remaining claims.
For the reasons that follow, the Court denies Williams' claim of ineffective assistance of trial counsel premised on the failure to argue the defense of justification under New York Penal Law § 35.30(4).
II. Factual Background and Procedural History
The conviction at issue here arose from the beating death of Daryl Bryant ("Bryant") after he was involved in an altercation with Williams on the streets of Buffalo on January 6, 1995. Williams fled the scene but there were several eyewitnesses who came forward to the police. On February 1, 1995, Williams appeared at the Buffalo Police Department with retained counsel Robert Convissar. He waived his rights and gave a statement which, in relevant part, as follows:
Q: The Buffalo Police Homicide Bureau is investigating the beating death of Daryl Bryant who was found beaten on the corner of Wakefield and Holden Sts. on January 6th, 1995 at approximately 7:45 p.m. Can you tell me in your own words what you know of this beating?
A: What actually Happened was, I was at a Friend of Mine's House at 24
Wakefield. Daryl [Bryant] walks in. He owed me money because he sold me a non-working VCR. He was supposed to be paying me back a little, little by little. I paid him sixty dollars for the VCR. Daryl told me then that he didn't have it. I was on my way out the door and Daryl was talking to my friend in the back room. As I was leaving out, Daryl was leaving right behind me. We walked the same way up Wakefield. We got to the middle of the block and he turned to the side and said, "I shouldn't have to pay you nothing." We were still walking, and I told him that he sold me a messed up VCR, I should be able to get my money back. By this time we were about in front of 58 Wakefield and he turns to the side and grabs me by my throat. I tried to jump back to get away from him and he then punched me in the face. I fell on top of a car and he snatched by [sic] gold necklace and started to run up the street. I got up and chased him. As we got to the corner of Wakefield and Holden I saw some friends and I yelled to Antoine, "stop him." Daryl stopped to let a carl [sic] go past and he tried to continue running but I caught up to him. I grabbed his hand and grabbed my necklace out of his hand. He hit me again and that's how the fight started.
Q: What happened now that the fight started?
A: As we were fighting, he got on top of me. He put his knees on my shoulders and started to choke me. I weaved [sic] my arm up and I hit him, because he was choking me and I couldn't breathe. When I hit him we fell side to side in the snow. I grabbed him by his throat and he still had me by my throat. We was [sic] choking each other for at least 2 or 3 minutes. I let him go, because I didn't feel no [sic] more force to my neck and he wasn't moving. When I seen [sic] that he wasn't moving I turned him over on his back. I seen that he wasn't breathing and I gave him CPR for about 3 minutes. I am a Red Cross trainee for CPR. I got up and was walking around in a daze.
Q: What happened after you got up?
A: I just stared at him and left everything there, my gold chain, the money in my pocket that fell out when we were fighting. I stood there for a while and walked home.
Q: Who witnessed this fight?
A: Antoine Parker, he lives at . . . . Martinez Pitts, he lives at . . . . Derrick
Pitts, he also lives at . . . . Alice Cuff, she lives at . . . . [A]nd the rest of the people I never seen [sic].
Q: Did you punch or kick Daryl more than the once that you stated that you hit him when he was on top of you?
Q: When you stood up and Daryl was laying [sic] on the ground, did you believe that he was dead at that time?
Q: How did you have hold of his neck?
A: With two hands like this (deponent places both of his hands around his own throat to show how he had his hands placed).
Q: Did anyone else participate in this fight between you and Daryl?
Q: The only injuries that Daryl could of [sic] sustained at the time of the fight with you were caused by his altercation with you?
Q: Did you hit Daryl with anything besides the one time that you hit him with your fist?
Q: What fist did you hit him with and where did the punch land?
A: I hit him with my right hand and it hit him in the temple.
Q: When you punched Daryl, did he stop fighting momentarily?
Q: Did you sustain any injuried [sic] during this fight?
A: Yes. I had scratches around my neck, bruises on my ribs and arms.
Q: Did you take anything from Daryl after the fight was over?
Q: Do you know how to use karate?
Q: Did you hit Daryl in the neck?
Q: Why didn't you come forward with information before this time?
A: Because when it happened, my family was getting harrassed [sic] and my mother told me to get a lawyer.
Q: After this fight ended, you mentioned that you walked home. What address did you walk to?
A: 95 Wakefield. My aunt Karen Garland lives there.
Q: When you went into 95 Wakefield after this fight, did you come back out at any time before the police arrived at the scene of this fight?
A: When I was leaving the scene of the fight, the police were already coming around the corner. I went into 95 Wakefield then I went over to a fiend of mines [sic] house. I went to . . . where my friend Earl lives.
Q: Is there anything else that you can think of that might assist us in this investigation?
Q: I will now have you read this two page statement out loud, and if it is true and ...