The opinion of the court was delivered by: Dearie, Chief Judge
Pro se petitioner, Jose Soto, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, the petition is denied.
The incident which led to petitioner's conviction began on the afternoon of December 10, 2001. Defendant was sitting in a Jeep parked outside a methadone clinic in the Red Hook neighborhood of Brooklyn when he was confronted by George Lopez. When Lopez attempted to grab petitioner's necklace, a struggle ensued. Soon thereafter, William Muniz, who had been robbed by petitioner in a prior incident, joined in the fracas. After Muniz stabbed petitioner several times with a pocket knife, a gun emerged, fell to the ground and discharged. Petitioner then picked up the gun and pursued Muniz. As Muniz hid behind a parked vehicle, petitioner, who was being restrained at the time, yelled in Spanish that he was going to kill Muniz and then shot once over the car toward him. Muniz was hit in the neck and, despite immediate hospitalization, died from the wound several days later.
At trial, petitioner's oral, written and videotaped post-arrest statements were admitted in evidence. Petitioner presented a defense of justification. The jury was charged on theories of intentional and depraved indifference murder, as well as two lesser-included offenses and second degree criminal possession of a weapon. Petitioner was acquitted of intentional murder but convicted of depraved indifference murder and the weapons charge. On January 28, 2003, petitioner was sentenced as a persistent violent felony offender to two concurrent terms of twenty-five years to life in prison.
On appeal, petitioner argued: (1) that the court should exercise its "interest of justice jurisdiction" to find that there was insufficient evidence for a depraved indifference conviction, where the evidence was consistent only with intentional murder;*fn1 (2) that petitioner was denied a fair trial due to the introduction of testimony regarding his prior robbery of the deceased; and (3) that his sentencing pursuant to New York's persistent violent felony statute was unconstitutional under the principles announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). After petitioner's appellate brief was filed and after the state had responded, but before the case was calendared, appellate counsel moved to file a supplemental brief to assert an additional claim of ineffectiveness of trial counsel for failure to preserve a sufficiency challenge regarding the depraved indifference murder count. In her motion to amend, appellate counsel cited an intervening Appellate Division decision, People v. Turner, 781 N.Y.S.2d 163 (App. Div. 2004), which found appellate counsel ineffective for not challenging the effectiveness of trial counsel's failure to object to a lesser-included offense on the ground that it was barred by the statute of limitations. The motion to amend was denied and on January 24, 2005, petitioner's conviction was affirmed. The Appellate Division found petitioner's sufficiency claim to be unpreserved and declined to exercise its "interests of justice jurisdiction" to reach the issue. The Court also found that "defendant's remaining claims either are without merit or do not require reversal." People v. Soto, 787 N.Y.S.2d 901 (App. Div. 2005). Leave to appeal to the Court of Appeals was denied on March 9, 2005. Petitioner's conviction became final ninety-days later on June 7, 2005.
On that day, petitioner moved for a writ of error coram nobis on the ground that his appellate counsel was ineffective for failing to challenge the effectiveness of trial counsel. In that motion, petitioner acknowledged appellate counsel's unsuccessful attempt to amend her brief and cited correspondence in which counsel explained the difficulty of prevailing on the ineffectiveness of trial counsel claim. By order dated October 3, 2005, the Appellate Division denied the writ on the merits. People v. Soto, 801 N.Y.S.2d 546 (App. Div. 2005). Leave to appeal was denied on January 27, 2006.
Petitioner brings this application asserting the same sufficiency and sentencing challenges raised on direct appeal, together with the ineffective assistance of appellate counsel claim asserted in his petition for writ of coram nobis.*fn2 In his reply to the state's response, petitioner also attempts to raise a new and unexhausted claim of ineffective assistance of appellate counsel for failure to appear at oral argument.
I. Sufficiency of the Evidence
The meat of this petition is wrapped around a very contentious bone. Although New York has long recognized the legal concept of depraved indifference murder, see People v. Sanchez, 98 N.Y.2d 373, 395-397 (Rosenblatt J., dissenting) (discussing common law and statutory history of DI murder), the New York Court of Appeals' jurisprudence regarding the appropriate charging circumstances and substantive elements of that crime has undergone significant revision of late.
At the time of petitioner's trial, the leading Court of Appeals case on depraved indifference murder was People v. Register, which held that the mental state element of the crime was recklessness, that the actus reus was "conduct creating a grave risk of death," and that "circumstances evincing a depraved indifference to human life" referred to "the factual setting in which the risk creating conduct must occur." 60 N.Y.2d 270, 276 (1983). Petitioner is correct to note that Judge Jasen's dissent in Register "forecast the problems which the Court of Appeals is now attempting to correct in its recent opinions." Pet. Reply, 7. Those recent opinions include: People v. Hafeez, 100 N.Y.2d 253 (2002) (finding that depraved indifference murder excludes "quintessentially intentional" homicides targeted at particular victims); People v. Gonzalez, 1 N.Y.3d 464 (2004) (holding that depraved indifference murder conviction was "unsupportable as a matter of law" where defendant "was guilty of intentional shooting or no other"); People v. Payne, 3 N.Y. 3d 266, 270 (2004) (reversing conviction and noting that recent cases "have made it clear that depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York"); People v. Suarez, 6 N.Y.3d 202, 207, 215 (2005) (holding that depraved indifference murder "properly applies only to a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder" and admitting to "depart[ing] slightly from the Register formulation . . . in that we make clear that the additional requirement of depraved indifference has meaning independent of the gravity of the risk"); and People v. Feingold, 7 N.Y.3d 288 (2006) (explicitly overruling Register and Sanchez and establishing depraved indifference as a mental state element of the crime).
Most recently, in Policano v. Herbert ("Policano IV"), the Court of Appeals held, upon certification from the Second Circuit, that: at the time petitioner's conviction became final-June 28, 2001-Register controlled the legal sufficiency of evidence needed to establish depraved indifference; that under New York law a one-on-one shooting or knifing can almost never qualify as depraved indifference murder; that only in a few rare circumstances may a defendant be convicted of depraved indifference murder when but a single person is endangered; and that depraved indifference to human life is a culpable mental state. 7 N.Y.3d 779 (2006). Although the Court found that the change in the depraved indifference element of the crime should not be ...