The opinion of the court was delivered by: Gershon, United States District Judge
Pro se petitioner Ecson Caimite applies to this court under 28 U.S.C. § 2254 for a writ of habeas corpus, alleging that he is being held in custody in violation of the Constitution and laws of the United States pursuant to the judgment of a court of the State of New York. Specifically, Caimite challenges his convictions of depraved indifference murder and possession of a weapon in the third degree in connection with the shooting death of Joel Worrell. For the reasons set forth below, petitioner's application is denied.
Taken in the light most favorable to the prosecution, the evidence at Caimite's trial, held in Supreme Court, Kings County (Kreindler, J.), established the following facts:
On the evening of January 29, 2000, Caimite attended a housewarming party hosted by one of Joel Worrell's friends. Trial Transcript ("Trial Tr.") at 134. Because Caimite had not been invited to the party, Joel Worrell asked him to leave. Trial Tr. at 135-36. Later on in the evening, Caimite returned to the party, pointed a gun at Joel Worrell, and said "Yo, let's dead this right now." Trial Tr. at 141-42.
A month and a half later, on the afternoon of March 11, 2000, Caimite was drinking at a pool hall with Gerald Worrell ("Gerald"), one of Joel Worrell's nephews, and Everton Brown, one of Gerald's friends who thought of Joel Worrell ("Joel") as an uncle. Trial Tr. at 85, 98-99, 235-36, 239, 246. At some point during the afternoon, Caimite stood up to use the telephone, and Gerald went outside to smoke a cigarette. Trial Tr. at 99-103.
While Gerald was outside, Joel walked up to the pool hall, talked with Gerald briefly, and then entered the building. Id. After Joel entered the pool hall, he and Caimite became involved in a heated exchange during which Caimite said, "Man, you want war? You want war? I be back. I be back." Trial Tr. at 104-06. Caimite then left the pool hall heading in one direction, while Joel, followed by Gerald and a few others, walked to a friend's basement. Trial Tr. at 106-07. Joel stayed inside approximately five minutes before heading back out. Trial Tr. at 108. Shortly thereafter, Joel and Caimite's argument resumed, this time escalating into a physical confrontation on the streets near the pool hall. Trial Tr. at 41.
Dwayne Alexander first noticed Caimite and Joel's argument while standing across the street with two other people, Jamal Maule and Mark Joseph. Trial Tr. at 39. When Alexander crossed the street to try to talk Joel and Caimite out of their argument, Joel's hands were empty, and Joel was telling Caimite to take his hands out of his pockets, saying, "You think you are a bad man. You got a gun. You can't kill me. I will kill you." Trial Tr. at 41, 43, 46. As Alexander was trying to talk them out of their argument, Caimite shoved Joel and started reaching for his waist band. Trial Tr. at 46-49. When he saw Caimite reach for his waist band, Alexander started running. When he was half a block away, Alexander heard a shot fired, at which point he turned back briefly and glimpsed an empty-handed Joel attempting to grab Caimite, who appeared to have a black gun in his hand. Trial Tr. at 48-49. Alexander kept running to the end of the block, turned around again, and saw Joel trying to get up off the ground. Trial Tr. at 50. Caimite was no longer at the scene. Id.
At the time of the shooting, Richard Bono, an employee of Brooklyn Union Gas, was nearby in his utility van responding to a job. Trial Tr. at 222-26. Upon hearing a gunshot, Bono checked his side-view mirror and noticed a person lying on the ground approximately three or four car lengths away. Trial Tr. at 226-29, 233. Someone dressed in dark clothing was swinging and striking at the person on the ground, and when this assailant took a few steps down the street in the direction of Bono's utility van, Bono drove away. Trial Tr. at 228-29.
Colin Hinds was also nearby at the time of the shooting. While walking with his girlfriend on the street, Hinds noticed three men, two of whom were exchanging words. Trial Tr. at 255-57, 263. Hinds kept walking past the men and heard a "pow" when he was about one hundred feet away. Trial Tr. at 263, 277. According to Hinds, he turned when he heard the "pow" and saw one of the men, a short individual who was dressed in black and who had a gun in his hands, attacking a taller man. Trial Tr. at 260, 264, 266. The taller individual did not have anything in his hands and, when the taller person fell to the ground, the shorter person pulled the taller one up by the collar. Trial Tr. at 265, 267, 271. The shorter person then held the gun over the taller person, trying to fire it again. Trial Tr. at 267, 278. When the gun failed to fire, the shorter individual used it to "snap" the taller individual in the head and then ran away. Trial Tr. at 268-69. Hinds' testimony-that the assailant wore black and was shorter than his victim- matched Alexander's testimony that the assailant, Caimite, wore a dark jacket and was shorter than his victim. Trial Tr. at 42.
At approximately 5:45 p.m., Police Officer Juan Duque responded to a radio call and observed the victim, Joel Worrell, lying face down in the street bleeding from his nose and head.
Trial Tr. at 286-87, 290, 320-21. Medical personnel pronounced Joel dead at the scene, Trial Tr. at 326, and an autopsy revealed that the cause of death was a gunshot that entered the front of the chest, severed several major blood vessels, and then exited the back of the chest. Trial Tr. at 380-81. The decedent had sustained abrasions on the right side of the nose and on the right side of the cheek, as well as behind the left ear. Trial Tr. at 387. Lacerations were present on the top of the left side of the head and near the ear on the left side of the head. Trial Tr. at 387. Fractures of the skull were consistent with being hit over the head with a gun, and the doctor who conducted the autopsy opined that at least three different impacts must have caused the three distinct lacerations that she observed. Trial Tr. at 389-90.
For the above acts, Caimite was charged with Intentional Murder in the Second Degree (N.Y. PENAL LAW § 125.25), Depraved Indifference Murder (N.Y. PENAL LAW § 125.25), and Possession of a Weapon in the Second and Third Degrees (N.Y. PENAL LAW §§ 265.03, 265.02). Caimite's trial counsel requested that first degree manslaughter (N.Y. PENAL LAW § 125.20) be charged as a lesser included offense of intentional murder and that second degree manslaughter (N.Y. PENAL LAW § 125.15) be charged as a lesser included offense of depraved indifference murder. When these requests were denied, Caimite's trial counsel then requested that the trial court instruct the jury on intentional murder only. The court denied this request and instructed the jury on intentional murder and depraved indifference murder in the alternative. Trial Tr. 425-34, 492-95. During deliberations, the jury returned a note indicating that it was deadlocked on the murder counts. After consultation with Caimite, counsel requested, and the court delivered, a limited Allen Charge. Trial Tr. 525-27. Thereafter, the jury returned a verdict acquitting Caimite of intentional murder and finding him guilty of depraved indifference murder and possession of a weapon in the third degree. Pursuant to N.Y. Crim. Pro. Law § 330.30(1), Caimite moved to set aside his murder conviction, arguing that the trial court erred in failing to charge second degree manslaughter as a lesser included offense of depraved indifference murder. The trial court denied this motion and, on April 5, 2001, sentenced Caimite to concurrent terms of imprisonment of twenty years to life on the depraved indifference murder count and seven years of imprisonment on the weapons possession count.
With the assistance of appellate counsel different from his trial counsel, Caimite timely appealed his conviction to the Appellate Division, arguing that his due process rights were violated when the trial court failed to charge first degree manslaughter as a lesser included offense. The Appellate Division affirmed Caimite's conviction in a decision dated June 16, 2003, People v. Caimite, 306 A.D.2d 417 (2d Dept. 2003), and the Court of Appeals denied leave to appeal on July 21, 2003. People v. Caimite, 100 N.Y.2d 579 (2003).
On November 2, 2003, Caimite filed a pro se motion to vacate his conviction pursuant to N.Y. Crim. Pro. Law § 440.10, arguing that his trial counsel was ineffective. In an order dated March 8, 2004, the Supreme Court, Kings County (Dowling, J.), denied Caimite's motion to vacate, finding that his claims were procedurally barred and, in any event, meritless. Caimite filed three subsequent motions-on March 25, 2004; June 24, 2004; and July 20, 2004-seeking to reargue and renew his previous § 440 motion, all of which were denied because they did not raise any new issues. Caimite ...