The opinion of the court was delivered by: Sifton, Senior Judge
Petitioner William McMillon was found guilty by a jury on May 9, 2002 of one count of second degree murder in New York Supreme Court, Kings County. The conviction was later reduced to second degree manslaughter by the Appellate Division of the Supreme Court of the State of New York, Second department. People v. McMillon, 31 A.D.3d 136, 816 N.Y.S.2d 167 (2d Dept. 2006). Petitioner is currently serving a sentence of 4 to 12 years at the Livingston Correction Facility in New York as a result of his conviction. Petitioner brings this petition for habeas corpus pursuant to 28 U.S.C. § 2254 seeking to overturn his conviction on the ground that the New York courts unreasonably applied established Federal law when they determined that (1) there was sufficient evidence to establish beyond a reasonable doubt that he committed a reckless homicide; and (2) petitioner's privilege against self incrimination was not violated when officers deliberately delayed giving him Miranda warnings. For the reasons stated below, petitioner's application is denied.
The following facts are drawn from the parties' submissions in connection with this motion, including the record of petitioner's state court proceedings. Disputes are noted.
On March 7, 2001, 18-year-old petitioner William McMillon was in the courtyard of a Brooklyn housing project with Charles Frazier, Tyrone Newberns, and others. Tr. at 172, 222-225. Petitioner took a knife from Frazier, who was playing with it, and put it in his pocket. Tr. at 174, 225. Frazier took back the knife and, in doing so, ripped petitioner's pants. Tr. at 226. Petitioner then pulled a chain from Frazier's neck and refused to return it unless Frazier paid to repair his pants. A heated verbal exchange followed, during which Frazier threatened to stab petitioner if he did not return the chain. Tr. at 174, 182, 198, 227. Petitioner went into the lobby of the housing project, and Frazier followed petitioner and punched him in the face. Tr. at 227.*fn1 Petitioner refused to return the chain, and someone went to find Francois, the owner of the chain, who arrived at the scene. Tr. at 189. Francois appeared angry about petitioner's failure to return the chain and walked towards the location with his right hand inside his pants. Tr. at 177-78, 182.*fn2 Francois demanded the chain and petitioner repeated that he would not return it unless someone paid to have his pants fixed. Tr. at 191. As Francois walked towards petitioner while gesturing with open hands, petitioner pulled out a gun and shot him one time in the chest from about five feet away, holding the gun straight out at shoulder height.*fn3 Tr. at 157, 191-93, 210. Francois dropped to the ground and petitioner ran into the building. Tr. at 193. A witness saw a person reach towards Francois' waist area after he was shot, grab an object, and run away. Tr. at 181. Two other witnesses testified that Francois did not have a weapon when he was shot. Tr. at 192, 233. Detective Lawrence Perkins arrived within minutes of hearing the shot and found Francois unconscious with a bullet wound to the chest. Tr. at 30. The autopsy evidence revealed that the bullet took a downward path after it entered Francois' body. Tr. at 115.
Three days later, on March 10, 2001, police arrested petitioner when he arrived at his mother's wake.*fn4 Huntley Hearing Transcript at 14 ("H."). When petitioner became upset that he would not see his mother, the detective permitted him to enter the funeral home for 20 minutes following the wake. H. at 15, 16, 60. Detective Boyle thereafter transported petitioner in handcuffs to the precinct and placed him in a small, windowless interrogation room, where he handcuffed petitioner to a chair. H. at 65-66. Detectives Boyle and O'Brien interrogated petitioner for an hour, from 1:30-2:30 p.m., without giving him Miranda warnings. H. at 68. Petitioner initially denied shooting Francois. H. at 18. The detectives confronted petitioner with the evidence and sympathized with him, stating that they wanted to hear his side of the story. H. at 67-69. The detectives raised the possibility that petitioner acted in self-defense, and told him that petitioner was not the only person with a gun. H. at 66-69. They also talked about possible punishment. H. at 68-70. At 2:30 p.m., petitioner stated that he wanted to give an account of what happened, and the detectives read him the Miranda rights. H. at 72. Petitioner gave an oral statement in which he "confirmed" what officers had told him about his role in the murder, after which officers asked petitioner to write out the statement. H. at 25, 72-73. After the statement was written out, detectives secured petitioner's agreement to provide a videotaped statement to a prosecutor "for his own protection." H. at 77. Detectives then gave petitioner a break for the first time since the questioning began. H. at 76.
At 5:45 p.m., petitioner began giving his videotaped statement. H. at 47. At the beginning of the interview, the prosecutor gave petitioner his Miranda warnings, which petitioner agreed to waive, and noted the presence of detectives Boyle and O'Brien. See Videotape. The prosecutor showed petitioner the Miranda warnings he had signed earlier in the day and petitioner confirmed that his signature was present on them. Id. Petitioner also confirmed that the written statement was in his handwriting and contained his signature. Id. Petitioner's videotaped statement for the most part paralleled the written statement. Id.
At trial, the prosecutor devoted the bulk of his summation to petitioner's statements. Tr. at 283-299, 302-303. He told the jurors that they could "[f]orget about all the other witnesses," because petitioner admitting killing Francois. Tr. at 284. At the completion of the case, the trial judge instructed the jury to consider the following charges in the alternative: intentional murder, depraved indifference murder, first-degree manslaughter, second-degree manslaughter, and second and third-degree weapons possession. Tr. at 332-348. During deliberations, the jurors requested and received the videotape and written statements. Tr. at 363. The jury acquitted petitioner of intentional murder but convicted him of depraved indifference murder; it did not reach the remaining counts. Tr. at 373.
Prior to petitioner's trial, the trial court conducted a Huntley hearing to determine if petitioner's statements to detectives had been voluntary.*fn5 Following the hearing, the trial judge denied the motion to suppress both the written and videotaped statements. Tr. at 40-41.
On May 9, 2002, petitioner was sentenced to an incarceration term of 20 years to life. On February 5, 2005, petitioner appealed his conviction to the New York Supreme Court, Appellate Division, Second Department ("Appellate Division"). Petitioner cited Jackson v. Virginia, 443 U.S. 307; 99 S.Ct. 2781; 61 L.Ed. 2d 560 (1979), arguing that the evidence was insufficient to prove beyond a reasonable doubt that he committed reckless homicide, because the evidence was sufficient only to show intentional homicide, not reckless homicide. Petitioner further argued that the admission of his statements violated his privilege against self incrimination because officers had deliberately delayed in providing him with his Miranda warnings, citing Missouri v. Seibert, 542 U.S. 600, 159 L.Ed. 2d 643, 124 S.Ct. 2601 (2004).
On May 30, 2006, the Appellate Division unanimously modified and, as modified, affirmed petitioner's judgment of conviction. People v. McMillon, 31 A.D.3d 136, 816 N.Y.S.2d 167 (2d Dept. 2006). The Appellate Division found that the evidence was insufficient to support a conviction of depraved indifference murder, modified the judgment to record a conviction of second degree manslaughter, and remanded the case for resentencing.*fn6 Id. at 142. The court rejected petitioner's argument that the conviction had to be vacated because his conduct was consistent only with intentional homicide. Id. The court stated that a conviction of depraved indifference murder may be found legally insufficient either because the evidence demonstrates a manifest intent to kill, thereby negating the core element of recklessness, or because it fails to establish the required level of depravity and indifference. Id. at 139. It concluded that the appropriate relief in the first situation would be dismissal, whereas the appropriate relief in the second situation would be a reduction of the charge to manslaughter in the second degree. Id. at 139-141. Stating that a jury's acquittal of intentional murder reflected a finding that there was reasonable doubt as to petitioner's intent to kill, and noting that petitioner had fired only once and had claimed he did not intend to kill the victim, the court found that the killing had been reckless and that the evidence was sufficient to establish second degree manslaughter. Id. at 141-42. The Appellate Division also held that suppression of petitioner's statements was properly denied because petitioner's pre-warning statements were "not inculpatory," and his videotaped confession had followed a pronounced break and a renewed Miranda waiver. Id. at 138.
Petitioner timely sought leave to appeal the Appellate Division's decision to the New York Court of Appeals, which request was denied on August 28, 2006. People v. McMillon, 7 N.Y.3d 815, 822 N.Y.2d 490 (2006). Petitioner was resentenced to a term of imprisonment of four to twelve years. Petitioner has filed no other ...