The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
On April 16, 2002, a jury convicted Josiah McTier ("petitioner") in New York State Supreme Court, Kings County, of first degree gang assault and the court sentenced petitioner to a prison term of seventeen years. The Appellate Division, Second Department, affirmed petitioner's conviction in a decision dated January 10, 2006, People v. McTier, 25 A.D.3d 572 (2d Dep't 2006), and the New York State Court of Appeals ("Court of Appeals") denied petitioner leave to appeal on April 10, 2006, People v. McTier, 6 N.Y.3d 850 (2006). Petitioner did not seek a writ of certiorari from the Supreme Court of the United States. Petitioner timely filed this petition for a writ of habeas corpus on February 24, 2007. For the reasons set forth below, the petition is denied.
I. Facts and Procedural History
On September 22, 2000, at approximately 3:00 P.M., the victim, Rick Tubens, and four of his friends-Destin Smith, Jason, Gary and Kwane*fn1 -stood together outside of a corner store at the intersection of Rockaway Parkway and Glenwood Road in Brooklyn, New York, listening to a box radio. (Tr. at 134.)*fn2 An unidentified man with gold caps on his teeth approached and addressed the group. (Id.) An argument ensued between the man with gold-capped teeth and Kwane over what Smith assumed related to Kwane's past gang affiliation. (Tr. at 135.) The man with gold-capped teeth threatened to "poke" Kwane as well as each of Kwane's friends. The tip of an ice pick appeared to protrude from his coat. (Tr. at 135-37, 178, 204, 214.)
Shortly thereafter, a black Chevy Blazer approached from Rockaway Parkway and stopped in front of the corner store where the group stood. (Tr. at 138--39, 159.) Approximately ten to twelve black males, apparently Crips gang members, based on the blue color of their clothing and bandanas, exited the vehicle and surrounded Tubens and his friends. (Tr. at 141, 145, 185, 205, 216.) As the men exited the vehicle and approached the group, the driver of the Chevy Blazer put on gloves, placed his hand on the handle of a handgun, which was visible in his waistband, and threatened to shoot Kwane in the face. (Tr. at 143, 181-84, 191-92.) At this point, petitioner approached the group and began speaking with the driver and the man with gold-capped teeth for several minutes. Petitioner wore a gray hooded sweatshirt with lettering on it and a black stocking cap on his head that covered his cornrows or braids. (Tr. at 144, 153, 186, 205, 242.) It became more crowded on the corner as the two groups continued to argue and two buses stopped nearby, discharging passengers. (Tr. at 146, 196.) Some of the men who exited the buses also wore Crips gang colors and greeted each other with gang handshakes. (Tr. at 193-96.) Then, without warning, petitioner swung at Kwane and attempted to stab him in the neck with an unidentified object that was visible in his hand. (Tr. at 147, 149, 189, 196, 215.)
The individuals from the Chevy Blazer, some carrying box cutters and knives, rushed at Tubens and his friends. (Tr. at 149, 215.) Tubens, Smith, Jason, Gary and Kwane all ran from the corner as the group from the Chevy Blazer, including the man with gold-capped teeth and petitioner, followed in armed pursuit. In an attempt to get away, Tubens swung the box radio at the group as it advanced towards him, Kwane and Gary. (Tr. at 150, 192.) Alone, Tubens then backed away from the corner of Rockaway Parkway and moved in the direction of East 98th Street, while a group that included petitioner and the man with gold-capped teeth continued in pursuit. (Tr. at 150, 153-54, 202.)
Meanwhile, Sean Saey, a telephone mechanic employed by the Verizon Telephone Company, drove a company van on Rockaway Parkway and attempted to make a left turn onto Glenwood Road when he noticed a commotion on the corner. (Tr. at 238, 240-41, 269-70, 273.) Saey witnessed a group of approximately twenty to twenty-five people standing in the vicinity of the corner store. (Tr. at 240-41, 270-72, 277.) Saey could not make the left turn onto Glenwood Road, because there were people in the crosswalk. (Tr. at 241, 271.)
While Saey waited in the intersection, he watched as two males from the group on the corner moved onto Glenwood Road and stood in the middle of the street. (Tr. at 241-43, 273, 304, 306.) Saey described one of the men (presumably Gary) as slim, tall, and dark skinned. (Tr. at 242.) The other man, who Saey later identified as petitioner, was shorter with light skin and wearing a grey sweatshirt. (Tr. at 242-43, 245, 273.) With an unobstructed view, Saey observed petitioner pursuing the taller man as petitioner swung his fists in an attempt to hit him. The taller man back-pedaled while blocking petitioner's attack and swung back. (Tr. at 241-44, 273-75, 281-85, 308, 310.) Saey called 911 and soon heard police sirens. (Tr. at 253-254, 280-282, 285-288, 307-310.) Shortly after the sirens were heard, petitioner stopped swinging at the taller man and walked to the right of Saey's van, towards the intersection of Rockaway Parkway and Glenwood Road. The taller man retreated towards the sidewalk. (Tr. at 244-246, 275-276, 279, 281, 283.)
As the taller man walked along the sidewalk toward the dumpsters on the side of Glenwood Road, he was grabbed by Rick Tubens, who motioned as if to say, "Let's get out of here." (Tr. at 247-248, 268, 276, 279-280.) Tubens wore work clothes, which included a bandana with paint stains and a dust cover mask. (Tr. at 248.) He continued to hold the box radio. (Id.) The taller man and Tubens walked along Glenwood Road towards East 98th Street. (Id.)
A few moments later, as Saey inched through the intersection, he observed petitioner standing in the middle of Glenwood Road between East 98th Street and Rockaway Parkway, approximately twelve to fifteen feet in front of his van. (Tr. at 248-52, 258, 290-93, 295, 303, 310.) Although Saey did not know which direction petitioner came from, petitioner stood beside the dumpsters where he saw Tubens just moments earlier. (Id.)
Then, Saey saw an object in the middle of the street. (Tr. at 258.) As he approached the object, Saey observed someone screaming while standing over a body that lay in the street. (Id.) Saey exited his van, walked towards the body, and realized the body was that of Tubens. (Tr. at 259.) Tubens gasped for air as he lay on his back. (Id.) He had a bloodstain on his chest and appeared to be unconscious. (Tr. at 152, 259.) No witness observed the attack. (Tr. at 202.)
An ambulance transported Tubens to Brookdale Hospital, where Dr. Joseph Portereiko treated his injury. (Tr. at 323, 328-329.) Tubens arrived in a state of cardiac arrest with a single stab wound to the heart. (Tr. at 328-331.) Despite Dr. Portereiko's best efforts, Tubens died on April 11, 2001, due to complications from the wounds to his aorta. (Tr. at 323, 328-329.)
On the day of the attack, police officers brought petitioner to the 69th Police Precinct after matching him to the description of a person involved in the incident. (Tr. at 69-71, 83-85.) Saey identified petitioner in a lineup as the person he witnessed fighting with the taller man at the intersection of Glenwood Road and Rockaway Parkway. (Tr. at 94, 244-46, 263-64.) The police then placed petitioner under arrest. (Tr. at 106.)
A Kings County Grand Jury voted an indictment against petitioner, charging him with two counts of Murder in the Second Degree (Penal Law § 125.25  and ); two counts of Assault in the First Degree (Penal Law § 120.10  and ); and one count of Manslaughter in the First Degree (Penal Law § 125.20 ); Manslaughter in the Second Degree (Penal Law § 125.15 ; Assault in the Second Degree (Penal Law § 120.05 ); Gang Assault in the First Degree (Penal Law § 120.07); Gang Assault in the Second Degree (Penal Law § 120.06); and Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 ).*fn3
On May 14, 2002, a jury convicted petitioner of first degree gang assault. The court sentenced petitioner to a prison term of seventeen years. (Sentencing Tr. at 15, Starkey, J.) On appeal, petitioner claimed that: i) his defense counsel was ineffective for failing: (a) to request a missing witness charge in a timely manner, (b) for failing to move for a continuance, and (c) for being unprepared during the trial; ii) the prosecutor submitted perjured evidence; iii) the evidence of the missing witness should have been disclosed to the jury; iv) the jury rendered a repugnant verdict; and v) there was insufficient evidence to support petitioner's conviction. The Appellate Division, Second Department, affirmed petitioner's conviction by decision dated January 10, 2006. People v. McTier, 25 A.D.3d 572 (2d Dep't 2006).
On January 20, 2006, petitioner sought leave to appeal the decision of the Second Department with the Court of Appeals. (Resp't Ex. C.) Petitioner claimed that the evidence presented at trial was legally insufficient to sustain his conviction, and thus violated his Due Process rights. In particular, petitioner claimed that respondent failed to establish that he was the person who stabbed Tubens and failed to show the essential element of necessary intent to cause serious physical injury. The Court of Appeals denied leave to appeal on April 10, 2006. People v. McTier, 6 N.Y.3d 850 (2006). Petitioner did not seek a writ of certiorari from the Supreme Court of the United States. Petitioner timely filed this petition for a pro se writ of habeas corpus on February 24, 2007.