The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
In the instant action, petitioner Darrell Venable ("Venable" or "petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court construes the amended petition and supporting memoranda of law as raising numerous claims.*fn1 For the reasons set forth more fully below, the petition is denied in its entirety.
I. The Case Against Petitioner
On June 15, 1998, Officer Wilfredo Cruz arrived at an apartment located at 35 Nostrand Avenue, Brooklyn, New York, in response to an emergency call to 911. (Tr. 34.)*fn2 Once inside the apartment, he observed Kinsey M. Brooks lying on the floor in a pool of blood. (Tr. 36.) An ambulance took Brooks to a nearby hospital, where he was pronounced dead on arrival. (Tr. 37-38.) A detective located three discharged bullets. (Tr. 64, 81-82, 89.) Petitioner was identified by witnesses at the scene as the shooter and later arrested outside of his girlfriend's apartment. Shortly thereafter, a grand jury indicted him, charging him with two counts of Murder in the Second Degree, intentional murder (N.Y. Penal Law § 125.21(1)) and, in the alternative, depraved indifference murder (N.Y. Penal Law § 125.21(2)). Additionally, the indictment charged petitioner with one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03) and one count of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02(4)).
The trial court conducted a pre-trial hearing on March 1, 1999. (See generally Resp. Ex. A.) Jury selection began on March 17, 1999. Prior to the commencement of voir dire, the trial court explained to petitioner that he had the right to be present at sidebar conversations with potential jurors and that he had the ability to waive this right. (Voir Dire Tr. 47-79.) The trial court further explained that if he elected to participate in sidebar conversations, he would be accompanied by two court officers. (Voir Dire Tr. 48.) Petitioner consulted with his attorney and decided to participate in sidebar conversations. (Voir Dire Tr. 48-49.) Petitioner participated in the first sidebar conversation with a potential juror. (Voir Dire Tr. 79.) Immediately thereafter, petitioner indicated that he wanted to waive his right to be present at sidebar conversations. (Id.) The trial court rejected petitioner's waiver, indicating that he could not "do it at this point." (Id.) Neither petitioner nor his attorney objected as the voir dire continued and the court entertained sidebar conversations with 37 jurors, at which point the trial court recessed for lunch. (Voir Dire Tr. 79, 85-123.) During the lunch break, the trial court questioned petitioner as to his decision to waive his right to be present at sidebar conversations with potential jurors, and then granted his request. (Voir Dire Tr. 123-24.) The court then completed voir dire and impaneled the jury.
At trial, the prosecution presented several witnesses who testified about the events that led to the shooting, and who were witnesses to the shooting. The prosecution began with Christopher McNeil, who spent most of the day of the shooting with petitioner and the victim and was in the apartment when the victim was shot. The government then sought to present the testimony of Matthew Powell, and Ta-wai Bowles, both of whom also were present at the shooting. Defendant moved to preclude their testimony on the ground that defendant's mother observed that they were present during the final few minutes of Mr. McNeil's testimony. (Tr. 127-28.) The court heard argument on the matter, and denied defense counsel's motion. (Tr. 129-130.) The court indicated that defense counsel could cross the witnesses on the matter.
According to the prosecution's witnesses, petitioner and several other individuals were "playing dice," a form of gambling, outside their apartment complex, located at 35 Nostrand Avenue on the morning of the shooting. (Tr. 98.) The police broke up the game. (Tr. 99.) Petitioner and some of the individuals then entered the apartment to resume their game of dice. (Tr. 100.) Brooks eventually won and petitioner then demanded that Brooks return his money. (Tr. 102-03, 112, 182, 253-54.) Brooks refused and petitioner fired a shot, which missed Brooks. (Tr. 105-06, 112, 182, 254.) Brooks and petitioner began wrestling. (Tr. 107, 183, 256, 285.) A second shot was fired and Brooks staggered towards a couch in the apartment. (Tr. 108, 183, 257.) A third shot was fired as petitioner fled the apartment. (Tr. 109, 183, 257.)
Additionally, the prosecution presented the testimony of several law enforcement officers: Police Officer Wilfredo Cruz (the first police officer to arrive at the crime scene), Detective Victoria Burton (the crime scene investigator), Police Officer Stephen Allegretti (an additional officer assigned to this case), Detective Avery Howard (the detective who located petitioner and participated in his arrest), Dr. Frede Frederick (the medical examiner who conducted the autopsy of the victim), and Detective Steven J. Fiorica (a firearms examiner and ballistics expert).
Defendant did not present a case.
On April 5, 1999, the jury convicted petitioner of Murder in the Second Degree for intentional murder (N.Y. Penal Law § 125.21(1)) and Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03). The jury acquitted petitioner of the remaining charges of the indictment. The state trial court sentenced petitioner as a second violent felony offender to concurrent terms of imprisonment of twenty-five years to life for the murder conviction and fifteen years for the weapon possession conviction.
II. State Court Procedural History
Petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, Second Department ("Appellate Division"). His attorney filed an appeal on his behalf on an unspecified date in April 2003, challenging the conviction on the ground that the court's refusal to accept petitioner's waiver of his right to be present at sidebar conversations during voir dire until after the parties met with 38 jurors unfairly prejudiced petitioner (the "Antommarchi claim"). Additionally, petitioner filed a pro se supplemental brief on October 30, 2003, challenging his conviction on the grounds that: (i) the denial of his right to testify before the grand jury violated due process, (ii) the trial court erred in denying his request to send a second degree manslaughter charge to the jury, given evidence of his intoxication, (iii) the trial court erred in permitting two witnesses to testify even though they had heard a few minutes of testimony of another witness, and (iv) the verdict was against the weight of the evidence. (See generally Supp. Pro Se Br.) The Appellate Division denied petitioner's appeal after considering the submissions of counsel and petitioner. See People v. Venable, 7 A.D.3d 647 (2d Dep't 2004). The Appellate Division held that: (i) petitioner failed to preserve his Antommarchi claim, and that in any event, that claim lacked merit, (ii) petitioner waived any argument premised on his inability to testify before the grand jury, and (iii) the remaining claims lacked merit. On August 16, 2004, the New York State Court of Appeals ("Court of Appeals") denied leave to appeal and affirmed the conviction. See People v. Venable, 3 N.Y.3d 682 (2004).
Petitioner then moved to vacate his conviction pursuant to § 440.10 of New York Criminal Procedure Law ("N.Y. C.P.L."), contending that the trial court's error in sending both intentional and depraved indifference murder charges to the jury violated his due process rights as the trial court sent inconsistent charges to the jury. (See Pro Se Mot. to Vac.; Pet.'s Ex. C.) The trial court held that this claim was procedurally barred pursuant to N.Y. C.P.L. § 440.10(2)(c), as petitioner failed to raise the claim in his direct appeal and, furthermore, that it lacked merit. See People v. Venable, Indict. No. 6296/98 (Sup. Ct. King's Co. Aug. 31, 2004); Pet.'s Appx. 3. The Appellate Division denied leave on December 15, 2004. See People v. Venable, No. 2004-08364 (2d Dep't Dec. 15, 2004); Pet.'s Appx. 5.
On January 7, 2005, petitioner filed the instant action, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See generally Pet., Docket Entry No. 1.) By way of reference, petitioner raises all of the grounds for appeal asserted in the aforementioned state court proceedings. The parties fully briefed those claims for relief. (See generally Def. Opp., Docket Entry No. 6; Pet.'s Rep., Docket Entry No. 8.) Subsequently, petitioner moved to supplement his intentional-depraved indifference murder claim with newly issued case law (see Mot. to Am., Docket Entry No. 9), which the court granted (see April 5, 2006 Order). Petitioner filed several additional motions.
Petitioner moved to stay the instant action pending resolution of a motion to renew and reargue he had filed in state court pursuant to N.Y. C.P.L. § 2221. (See Mot. to Stay, Docket Entry No. 11.) In state court, petitioner sought to renew and reargue an omnibus motion he had filed attacking the indictment as defective for lack of jurisdiction. The trial court denied the petitioner's motion for lack of merit. See People v. Venable, Index No. 6296/98 (Sup. Ct. Kings Co. Sept. 27, 2007). Petitioner has not moved for leave to amend the petition to add this claim. However, the court construes the motion to stay as seeking leave to amend and grants leave to amend to add this claim to the petition.
Petitioner moved to amend his petition a second time. (See Mot. to Am., Docket Entry No. 14.) In his submission, he indicated that he had recently exhausted a claim in state court that attacked his sentence on the ground that New York's second violent felony offender sentencing scheme violated the right to trial by jury. He provided the court with the state court briefs. The trial court denied petitioner's motion on the merits (see People v. Venable, Index No. 6296/98 (Sup. Ct. Kings Co. October 25, 2007) and the Appellate Division denied leave to appeal (see People v. Venable, No. 2007-10855 (2d Dep't Feb. 14, 2008) (Florio, J.)). This court granted leave to amend to add this claim to the petition on March 26, 2008.
Finally, petitioner moved for leave to amend his petition to supplement his claim that the verdict was against the weight of the evidence with recent case law. (See Mot. to Am., Docket Entry No. 18.) He provided the court with the state court briefs, in which he moved to renew and reargue his pro se appeal. In particular, he moved to supplement his claim that the verdict was against the weight of the evidence with recent case law. The Appellate Division denied leave. See People v. ...