The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Paul Robinson ("Robinson" or "petitioner"), proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court (Monroe County) on May 23, 1998, on three counts of attempted murder in the first degree; four counts of assault in the first degree; and one count of attempted assault in the first degree. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c)(1).
II. Factual Background and Procedural History
At about 11:00 p.m. on December 27, 1997, Robinson engaged in a shoot-out with three police officers who had forcibly entered his wife's apartment, at her request and with her signed consent, to remove him from the premises. Earlier that evening, Robinson and his wife had been embroiled in a domestic violence dispute, and Robinson had locked her out of the apartment. Robinson's fire wounded one police officer in the neck, and a second in the arm. The third officer, who was wearing a bullet-proof vest, was shot in the chest. All three officers survived.
Robinson was indicted on three counts of first degree attempted murder; four counts of first degree assault; and one count of attempted first degree assault for the shot fired at Officer DiFante, who was wearing a bullet-proof vest. His jury trial was conducted in Monroe County Supreme Court (Ark, J.).
At trial, the prosecution presented testimony that at about 10:00 p.m., Robinson's wife ("Mrs. Robinson"), had entered the S&T Lounge located a few buildings down the street from her apartment building on North Street. Samuel Montgomery ("Montgomery"), a security guard employed by the bar, observed that Mrs. Robinson was wearing a bathrobe and had no shoes or socks on, and appeared to be "upset" and "afraid." She told him that she wanted to call the police, T.1004,*fn1 stating, "My husband just beat the crap out of me," T.990. Mrs. Robinson was allowed to use the phone to call the police and wait inside the lounge for them to arrive.
However, the police did not respond immediately to the scene. After about fifteen or twenty minutes had elapsed, Montgomery stepped outside to watch for them. He observed a man, whom he later identified as Robinson, run out of Mrs. Robinson's apartment building toward the bar. Montgomery returned inside the lounge; Robinson entered moments later and immediately went after Mrs. Robinson. Montgomery stepped in between them and told Robinson that the police had been called and that he should go outside. T.1006. Robinson turned away and walked out of the bar, with Montgomery following him.
Once outside, Montgomery observed a marked patrol car at the intersection of North Street and Central Avenue. T.1007. As the police car approached the bar, Robinson ran down the street and entered Mrs. Robinson's apartment building. T.1012. Another police car appeared, and both stopped in front of the bar next to the curb. Two uniformed officers, Mark Dibelka ("Dibelka") and Thomas DiFante ("DiFante"), stepped out, and Montgomery directed them to Mrs. Robinson, who was crying and appeared distraught. T.1118. t Officers Dibelka and DiFante related that Mrs. Robinson told them that "she had been in a fight with her husband" and that he "had slapped her, that he had pushed her around" and that "when she left to contact the police," he "locked [her] out of the her apartment." T.1119, see also T.871, 990. Mrs. Robinson also said that her two children were inside the apartment and that she was worried about their safety because Robinson had a gun. T.1119-20. Mrs. Robinson explained that an order of protection had been issued against her husband. T.1120.
Officer Dibelka placed Mrs. Robinson in the backseat of his patrol car and then, accompanied by Officer DiFante, proceeded to Mrs. Robinson's apartment located on the third floor of the apartment building into which petitioner had run minutes earlier. T.1121. The officers knocked on the door to the apartment and called out, in "loud, clear, calm voice[s]," T.1123, that they were the police and that they wanted to talk to him. T.1122. They received no answer. The officers then used their night-sticks to rap on the door for about five to ten minutes; still, there was no answer. T.1122. They continued to call out Robinson's name but received no response. T.1123.
Thinking they might have been knocking on the wrong door, the officers went outside and obtained confirmation from Mrs. Robinson that they had the correct apartment number. Apparently, however, there were two doors to the apartment and the officers had only been knocking on one. The officers returned to the hallway, knocked on both doors, and identified themselves as police officers. T.1125. Again, there was no response from inside the apartment.
Believing that they were going to need to force their way into the apartment, the officers then called their superior, Sergeant Michael Kozak ("Kozak"), to ask for further direction.
T.1125. Kozak arrived a few minutes later. After being briefed on the situation, Kozak advised Dibelka to inquire of Mrs. Robinson whether she wished the police to make a forced entry into her apartment. T.1126. Mrs. Robinson responded affirmatively and signed a consent form, along with a sworn deposition alleging that petitioner had beaten her that evening. Mrs. Robinson was "crying" and was "very distressed" that the police had not been able to get into the apartment yet.
T.1128. She stated that she did want Robinson arrested. T.1128.
Officers Dibelka and DiFante, along with Sergeant Kozak, attempted to force their way into the apartment. The officers were able to partially pry open one of the doors, but there was someing heavy behind it which prevented it from opening fully. The second door to the apartment would not budge. The officers testified that they repeatedly yelled through the door opening for petitioner to come out and identified themselves as the police.
Unable to gain entry to the apartment, and having obtained no response from anyone inside, the police called the fire department for assistance. With the help of several firefighters and a hydraulic door-opening tool, the officers were able force open the second door. T.745. As the firemen stepped away from the door, the officers drew their weapons and yelled for petitioner to come out. T.747. Again, there was no response. With their guns drawn and flashlights activated, The officers then entered the apartment by way of the kitchen and then moved into the living room, both of which were empty. Officers Dibelka and DiFante then moved toward a set of double doors that appeared to lead to a bedroom. Officer Dibelka reached to open the doors, announcing, "It's the police. Come out." T.1138. When Officer Dibelka opened the door, Officer DiFante observed Robinson standing in the bedroom about three to five feet away, pointing a shotgun at them. T.900. Officer DiFante kicked at the door and yelled, "It's the police, it's the police. Let me see your hands." T.898. As Sergeant Kozak stepped into the living room to see what was going on, petitioner yelled, "I'm going to kill you!" He then opened fire with the 9-millimeter firearm he was holding. T.1139.
All three of the police officers were struck by petitioner's bullets--Dibelka in the neck, Kozak in the arm, and DiFante in his chest, which was protected by a bullet-proof vest.*fn2 Kozak and Dibelka fired their weapons but did not strike petitioner, who continued to shoot at them. Robinson fired a total of eight shots before he ran out of ammunition, at which point he dropped his weapon and announced, "I quit." T.902. Officer DiFante ordered Robinson to lie down on the floor and then placed him in handcuffs. As emergency personnel attempted to place Robinson on a stretcher, Robinson acted agitated and attempted to kick one of the officers. At the hospital, in the presence of several police officers, Robinson asked, "How are the other guys, the cops?"
T.1414. An investigator approached Robinson's bed and asked whether he wanted to discuss the incident, but Robinson looked down and did not respond. After being treated for a minor cut on his chin, Robinson was released and taken to police headquarters for booking.
Robinson did not testify at trial. The proof was undisputed that Robinson shot all three of the officers and caused their injuries. Defense counsel attempted to argue that Robinson, when he fired the shots, did not realize that the individuals who had entered his apartment were police officers. Defense counsel requested that the trial court charge the jury on the defense of justification, arguing that Robinson thought that the police officers actually were intruders staging a "home invasion," and that he reasonably believed that deadly physical force was necessary to defend himself or to terminate the burglary. The trial court denied defense counsel's request.
The jury returned a verdict convicting Robinson as charged in the indictment. He was sentenced to consecutive terms of imprisonment for an aggregate sentence of 60 years to life.
On direct appeal, the Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed the conviction. The New York Court of Appeal denied leave to appeal.
This federal habeas petition followed in which Robinson raises the following grounds for habeas relief: (1) petitioner was denied his due process right to a fair trial by the state court's admission of hearsay testimony of uncharged crimes; (2) petitioner was denied his due process right to a fair trial because the state court failed to provide defense counsel an opportunity to provide input regarding jury instructions; and (3) petitioner was denied his due process right to a fair trial by the state court's failure to instruct the jury on the defense of justification. See Petition ("Pet.") at 5-6 (Dkt. #1).*fn3 As discussed more fully below, the Court agrees with respondent that Robinson's second claim regarding the trial ...