The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Ricky Orta ("Orta" or "petitioner") has filed a pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1
Following a jury trial in Monroe County Court before Judge Donald Mark, petitioner was convicted of Murder in the Second Degree (N.Y. Penal Law § 125.25) and Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03) on March 12, 2002. Orta had also been charged with, but acquitted of "depraved indifference" murder in the second degree (N.Y. Penal Law § 125.25). He was sentenced to twenty-five years to life for the murder count and five to fifteen years for the weapons count to run concurrently to one another.
The conviction stems from an incident that occurred outside of 26 Joseph Place in the City of Rochester, sometime after 9:00 p.m. on the evening of April 16, 2001. The victim, Samuel "Tiger" Bronson ("Tiger") and his close friend, Corey Becoats ("Becoats") drove to 26 Joseph Place where another friend, Orlando Santiago ("Santiago") was "hanging around". T. 580.*fn2 Meanwhile, Orta (Santiago's cousin) was visiting with his grandmother at 54 Joseph Place. T. 654. Orta decided to also visit his aunt that night, who lived at 40 Joseph Place. While walking down the street to his aunt's house, Orta was confronted by Tiger and Becoats, who called Orta a "snitch" and repeatedly threatened to kill Orta, according to Orta's testimony at trial.*fn3 T. 655-656. Orta continued on to his aunt's house, where he decided to stay for a while and watch television. While at his aunt's house, the petitioner saw his cousin, Santiago, outside of house number 26 on Joseph Place. Santiago called Orta to come over. T. 656-657. When Orta went inside 26 Joseph Street, he saw Tiger and Becoats, who had in their possession Orta's witness statements from Samuel Leflore's murder case. Orta and Tiger began to argue about the statements, and, sometime thereafter, Orta shot and killed Tiger outside the hangout where a group of people were gathered. T. 325-331, 370-373, 584, 660-667.
A. Testimony of Ricky Orta
At trial, the petitioner testified in his own defense. On direct examination, Orta testified that Tiger was armed with a revolver during the altercation inside 26 Joseph Place. According to the petitioner, Tiger proceeded to "grab" Orta and as the two men struggled, Orta pushed Tiger's hand down, causing the gun to be fired through the floor. Orta then tried to run from the house, only to be obstructed by Santiago, whom he was also able to fight off. Orta fled into the street with Tiger following him. T. 661-663.
Orta then testified that Tiger fired his gun at Orta twice. T. 665. By happenstance, a friend of Orta's, Mario Rivera, was in a parked car in front of 26 Joseph Place. He "passed [Orta] a gun" and the petitioner then "shot back for [Tiger] to stop coming toward my way." He could not remember how many times he shot at Tiger, but did so out of fear that he would be killed, as Tiger had threatened Orta's life six or seven times that day. T. 666-667. Orta acknowledged that Tiger was "in effect, running away" when he fired the last few shots. T. 688. After the shooting, Orta left with Mario Rivera. T. 667.
B. Testimony of Orlando Santiago
Santiago recounted a different version of events for the prosecution. He testified that while Tiger and Orta were engaged in a heated argument in the kitchen of 26 Joseph Place, Orta banged a glass table with the butt of a black 9 millimeter handgun that he was holding. T.585. Santiago then joined the argument, blaming Orta for the damage to the table and for "disrespecting the house."
T.587. During the course of the quarrel, the handgun was fired, Santiago believed by accident, while Orta was pointing it at the floor. T. 588. According to Santiago, Orta was the only person present that was armed with a weapon. T. 586. Santiago proceeded to leave the house and was across the street when he saw Orta emerge with Tiger and Becoats. Santiago heard gunshots, and in looking back toward 26 Joseph Place, saw Orta standing near the front gate firing "maybe four or five shots" at Tiger while Tiger retreated. Orta then hopped into Mario Rivera's car and fled. T. 590-596.
Orta appealed his conviction to the Appellate Division, Fourth Department, which affirmed his conviction. People v. Orta, 12 A.D.3d 1147 (4th Dept. 2004). The New York Court of Appeals denied leave to appeal on February 28, 2005. People v. Orta, 4 N.Y.3d 801 (2005). Petitioner then filed an initial petition for a writ of habeas corpus in this Court containing three claims for relief: 1) that the verdict of intentional murder was against the weight of the evidence; 2) improperly admitted hearsay evidence by the prosecution; and 3) the petitioner was impermissibly cross-examined by the prosecution. Petition ("Pet.") ¶ 22. (Dkt. #1). Orta then filed a motion to stay or hold his habeas petition in abeyance so that he could exhaust two additional claims in state court. (Dkt. #12). Along with the motion to hold the petition in abeyance, petitioner filed an amended petition which raised the two claims he sought to exhaust in state court: 1) that the prosecution improperly charged both intentional and depraved indifference murder, which fundamentally deprived the petitioner of his right to a fair trial; and 2) ineffective assistance of trial ...