The opinion of the court was delivered by: Spatt, District Judge
MEMORANDUM OF DECISION AND ORDER
Presently before the Court is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Ralph Farino ("Farino or the "petitioner"). For the reasons that follow, this petition is denied.
Ralph Farino petitions this court pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. The petitioner seeks relief from his April 4, 2002 conviction after a trial by jury in the New York Supreme Court, Suffolk County, of murder in the second degree (Penal Law § 125.25(2), also known as depraved indifference murder) and arson in the second degree (Penal Law § 150.15). The charges arose from the March 2, 2001 death of Claudia Broder ("Claudia"), Farino's mother-in-law. Following his conviction, the petitioner was sentenced to twenty-five years to life on the murder charge and a ten-year determinate sentence for arson, both counts to run consecutively.
Through counsel, the petitioner filed a direct appeal from the conviction. On appeal, he argued that (1) the court erred when both intentional murder and depraved indifference murder counts were submitted to the jury given that the evidence pertaining to depraved indifference murder was legally insufficient; (2) the petitioner was denied a fair trial; and (3) he was given an excessive sentence. The New York Appellate Division, Second Department, affirmed petitioner's conviction on August 8, 2005, People v. Farino, 21 A.D.3d 427, 800 N.Y.S.2d 194 (2d Dep't 2005). The court wrote that Farino's claims regarding instructing the jury on both intentional murder and depraved indifference murder and the insufficiency of the evidence were unpreserved for appellate review. Accordingly, the court declined to reach those issues. The court also stated that trial counsel failed to preserve the contention that prejudicial errors were made by prosecution on summation. As to the only issue preserved for appeal, the court ruled that the jury instructions clearly stated to the jury that the burden of proof was on the People and did not shift to the defendant. The Appellate Division also determined that the sentence was not excessive.
The New York State Court of Appeals denied Farino's application for leave to appeal on October 27, 2005, People v. Farino, 5 N.Y.3d 852, 840 N.E.2d 141, 806 N.Y.S.2d 172 (2005) (table). Thereafter, the Appellate Division denied the petitioner's coram nobis petition on December 26, 2006 seeking to vacate his conviction because Farino failed to establish that he was denied the effective assistance of appellate counsel. People v. Farino, 35 A.D.3d 879, 825 N.Y.S.2d 378 (2d Dep't 2006). The Court of Appeals later denied leave to appeal that decision on May 1, 2007. People v. Farino,8 N.Y.3d 984, 869, N.E.2d 663, 838 N.Y.S.2d 487 (2007).
On August 27, 2007, the petitioner filed the present petition under 28 U.S.C. § 2254. On July 28, 2008, with authorization of the Court and consent of the Suffolk County District Attorney, petitioner filed an amended § 2254 petition. In the amended petition Farino contends: (1) that the evidence was legally insufficient to convict him of depraved indifference murder; (2) that petitioner's Due Process and Equal Protection rights were violated because the trial court did not apply full retroactive application of People v. Suarez, 6 N.Y.3d 202, 844 N.E.2d 721, 811 N.Y.S.2d 267 (2005), and People v. Feingold, 7 N.Y.3d 288, 852 N.E.2d 1163, 819 N.Y.S.2d 691 (2006); and (3) that the petitioner's appellate counsel was ineffective on direct appeal because he failed to raise a preserved and meritorious Batson claim pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Initially, the petitioner claims that the evidence produced at trial was insufficient to support a conviction for depraved indifference murder because the prosecution did not prove every element of that crime beyond a reasonable doubt. As well, the petitioner claims that trial counsel's general motion to dismiss preserved the issue for habeas review and that a specific objection by defense counsel would not have dismissed the case because it was customary practice at the time for depraved indifference murder charges to be presented to a jury in one-on-one altercations. Lastly, the petitioner asserts that the law when he was convicted prevented counsel from arguing more specifically that evidence of depraved indifference murder was legally insufficient.
The petitioner explains that recent State court decisions have changed the elements of depraved indifference murder. The narrowing of the categories potentially excludes the conduct for which the petitioner was tried and convicted. In People v. Suarez, 6 N.Y.3d 202, 844 N.E.2d 721, 811 N.Y.S.2d 267, the court changed the categories in which depraved indifference murder could be used, particularly in one-onone crimes. In People v. Feingold, 7 N.Y.3d 288, 852 N.E.2d 1163, 819 N.Y.S.2d 691, the court ruled that "depraved indifference," rather than "recklessness" was the required mental element of that crime. The petitioner states further that the court should apply both of these precedents to his current petition.
Petitioner lastly contends that the appellate counsel provided ineffective assistance by not raising a meritorious Batson issue on appeal. The petitioner argues that the prosecution struck several prospective minority jurors with racial bias. The trial court ruled that the prosecutions' explanations were satisfactory and race neutral. The petitioner alleges that since a Batson violation is a structural error that can never be harmless, counsel's failure to raise it on appeal amounts to ineffective assistance.
On March 2, 2001, petitioner Ralph Farino killed his mother-in-law, Claudia Broder in her son's basement bedroom. The victim was repeatedly struck in the head with a baseball bat while Farino was high on cocaine, marijuana and alcohol. After placing Claudia's body in a storage bin and disposing of it at a remote location, the petitioner returned to ignite fire to the house using gasoline as an accelerant. At the time, the petitioner lived with his wife, Charity Broder, at the Broders' home. The petitioner claims to have been extremely stressed at the time of the incident and using drugs heavily because he believed that his wife was having an affair and may have been impregnated by another man. At trial, the petitioner maintained that he had not committed the crimes and was forced to dispose of Claudia's body and burn the house by three unidentified intruders who murdered the victim.
1. Evidence Regarding the Circumstances of the Attack
a. Testimony of Dr. James Wilson
Dr. James Wilson testified as the medical examiner. (Tr. 2559). Dr. Wilson testified that he was called to the scene where Claudia Broder's body was found. (Tr. 2566). He stated that there were severe injuries to the head region and in the area of the forearms and hands. (Tr. 2566). There was also a lot of blood loss. (Tr. 2566).
Dr. Wilson testified that when Claudia's body was brought back to the medical examiner's office he observed evidence of very severe injuries, particularly in the region of the head. (Tr. 2569). He stated that there were also blunt traumatic injuries to the forearms and hands as well as the upper torso. (Tr. 2569--2570). In addition, Dr. Wilson testified that the injuries were characteristic of an object-like a baseball bat-that is capable of impacting against the body with force. (Tr. 2571). Dr. Wilson described the wounds on Claudia's forearms and hands as defensive wounds due to their location. (Tr. 2574--2575).
Dr. Wilson further testified that the right side of Claudia's face was discolored and caved in. (Tr. 2575). The entire right side of the head was red to purple discolored and had fragmented fractures of the skull. (Tr. 2576). The right side eye globe was ruptured from a blow and there were tears through the skin on the right side of the head because of multiple, hard strikes. (Tr. 2576). The broken bones were tearing through the skin from hitting impacts. (Tr. 2576).
Dr. Wilson also stated that Claudia's nose was broken and that there was an impact site on the left side of her face with a large tear of the left eye and bruises on the left check. (Tr. 2576). Also, he found multiple fragmented skull fractures and fractures in the right side of the face. (Tr. 2580). Dr. Wilson also testified that a large fracture "extended up from the right side, across the midline to the left, which was a single linear fracture." (Tr. 2580). There was also a break on the right side of the jaw over to the left side of the chin. (Tr. 2580). He went on to state that the brain itself had multiple signs of injury. (Tr. 2581). He explained that the brain injuries indicated that there were several blows struck to the right side of the head with large amounts of energy used. (Tr. 2581). Also, there was a fractured bone in the left forearm. (Tr. 2581).
Dr. Wilson described how, in his opinion, Claudia's body was positioned when she received the blows. (Tr. 2583). He explained that the blows to the hands and forearms may have been received in a variety of positions. (Tr. 2583). He opined that the shoulder blows occurred while the blunt object was aimed at the head. (Tr. 2583). Dr. Wilson went further to explain that the severe injuries on the right side of the head occurred while Claudia was on the ground. (Tr. 2583). He testified that Claudia's face was exposed with nothing protecting her face while she received the multiple blows. (Tr. 2584).
Dr. Wilson testified that dental records identified Claudia's body because he did not believe visual identification would be sufficient. (Tr. 2577). He further testified that after examining the pictures and reviewing his report, he believed that Claudia received "20 or more blows, at least." (Tr. 2582).
b. Testimony of Donald Dollar
Donald Dollar testified that he is employed by the Suffolk County Crime Lab and did a walk-through to collect forensic evidence at the Broder home. (Tr. 1586--1589). He stated that while doing a walk-through he found a large pool of what appeared to be blood in the center of a bedroom in the basement. (Tr. 1605). He also stated that he found what appeared to be blood stains on various items throughout the room as well. (Tr. 1606). Dollar also said that he found blood stains on the underside of a table in the room, the pole in the center of the legs of the table, a television stand and television, paneling along the wall, as well as the wall itself. (Tr. 1609-1611). Stains of what appeared to be blood were also collected on the ceiling. (Tr. 1614).
c. Testimony of Detective Thomas Farrell
Detective Thomas Farrell testified that he was assigned to the Arson Squad at the time of the incident in question. (Tr. 1346). During his testimony a video was shown in which he pointed out blood splatters in the room on the walls and ceiling. (Tr. 1375). Detective Farrell later testified that he also found an area of the carpet in the basement bedroom, which had red liquid that later tested to be human blood. (Tr. 1439).
2. Testimony of the Petitioner's Pre-Attack Activities
a. Testimony of Detective Daly
Detective Daly testified that when Farino was arrested and placed in the back seat of the police car he questioned him regarding the events that lead to the death of Claudia Broder. (Tr. 2261--2264). Detective Daly stated that while questioning the petitioner in the car, he admitted to having "blackouts" recently and that he did not know why. (Tr. 2264). The Detective then asked if the "blackouts" were because of too much drug use, to which the petitioner replied, "maybe." (Tr. 2264).
While testifying, Detective Daly read the written statement signed by the petitioner. (Tr. 2232). The statement said that the petitioner was driving around from about 5:00 a.m. because he was wired up from ingesting cocaine after work on the night of March 1, 2000. (Tr. 2233).
b. Testimony of Charity Broder
The petitioner's wife, Charity Broder, stated that towards the end of January 2001, Farino told her that he was using different types of drugs. (Tr. 2639--2643). She further stated that Farino told her he was using angel dust and she was aware of Farino's use of cocaine. (Tr. 2643). Charity Broder also testified that the petitioner's drug problem was an open fact since January or February of 2001. (Tr. 2696). She had separated from the petitioner in March of 2000 because he was using a lot of marijuana. (Tr. 2635, 2707). She also stated that the petitioner's drug use started after his brother's death in June of 2000. (Tr. 2697-2701).
c. Testimony of Robert Broder
Robert Broder testified as the husband of Claudia and that he lived in the same house as Claudia and the petitioner. (Tr. 1994, 1999). He testified that he knew that the petitioner had a problem with drugs. (Tr. 2020). Broder also stated that he was personally involved in Narcotics Anonymous and that he had conversations with the petitioner about the problems involving his drug use. (Tr. 2020--2021).
d. Petitioner's Testimony
The petitioner testified that he had ingested different types of drugs and alcohol throughout the night of March 1, 2001 after he left work. (Tr. 2913--2915). Farino testified that he withdrew between three hundred dollars and four hundred dollars from his wife's bank account to purchase cocaine. (Tr. 2913). The petitioner testified that when he left work at midnight he did cocaine and went straight to a bar where he drank beer and liquor for about forty-five minutes. (Tr. 2915). The petitioner stated that he received a marijuana cigarette from an acquaintance he knew at the bar. (Tr. 2915). The petitioner also testified that after leaving the bar, he met with an old friend to smoke a few cigarettes for about forty-five minutes and then picked up a twelve pack of beer and an "oil can" of beer (twenty ounces). (Tr. 2917--2918). After picking up the alcohol the petitioner stated he drove around for "a little bit" before heading home. (Tr. 2918). Farino went on to state that when he went home he barricaded himself in the living room and did cocaine, drank, and smoked marijuana and cigarettes for the rest of the night. (Tr. 2919).
Farino testified that he took his wife's cell phone to call some of her friends to talk about the problems they were having in their relationship. (Tr. 2920). Farino stated that he made a few calls and reached his wife's co-worker, Anna Gios. (Tr. 2922). The petitioner went over to Gios' house and had breakfast there but did not talk about the problems in his marriage that were bothering him. (Tr. 2922--2923). The petitioner testified that he left Gios' house and upon returning home got into an argument with his wife. (Tr. 2923--2924). After the argument, the petitioner stated that he was "pretty messed up . . . from the previous night into the morning and wasn't feeling too well," so he laid down. (Tr. 2927).
The petitioner stated that when he got up to take a shower that morning he noticed a champagne colored car outside. (Tr. 2930). Farino testified that after he got out of the shower he also saw a white van parked out front with a co-worker of Claudia Broder. (Tr. 2931). Farino testified that he went outside and talked with Claudia's co-worker, who was waiting for her, and then came inside to look for her. (Tr. 2932). The petitioner testified that he again went outside to inform the co-worker he could not find Claudia.
(Tr. 2932--2933). The petitioner went on to testify that he thinks he did more cocaine before laying down for a short time. (Tr. 2934). Farino further testified that he got up again to call his wife to apologize for fighting with her earlier that morning and did a little more cocaine. (Tr. 2936). The cocaine made him feel sick again, so he laid down once more. (Tr. 2936). Farino stated that he was still high while he was lying down when he heard a noise from the unidentified intruders. (Tr. 2936).
In his testimony, the petitioner additionally stated that he was addicted to cocaine during this time period, (Tr. 3021) and for the previous months before the homicide he was using cocaine and marijuana. (Tr. 2905). Farino further stated that everyone in the household had knowledge of his drug use and had spoken with him separately about his drug addiction. (Tr. 2906).
3. The Relationship between the Petitioner and Claudia Broder
a. Testimony of Charity Broder
Charity Broder testified that the petitioner did not have any animosity towards Claudia but had a problem with how Claudia handled the issues with Jacob, Claudia's son. (Tr. 2655--2656). She further testified that Claudia took care of her family including the petitioner when he moved into Claudia's home. (Tr. 2696). Charity Broder also stated that Claudia and the petitioner confided in each other with regard to the petitioner's drug problem and other problems he had. (Tr. 2697).
b. Testimony of Robert Broder
Robert Broder testified that he resided in the same household with the petitioner and Claudia Broder. (Tr. 1991). He also stated that Claudia was his primary care giver due to a stroke several years before. (Tr. 1991--1992). Broder testified that the petitioner spoke with Claudia and himself about problems with drugs use. (Tr. 2020--2021). He went on to state that the petitioner spoke with Claudia about other problems he was having as well. (Tr. 2021).
c. Testimony of the Petitioner
The petitioner stated that he got along well with Claudia Broder. (Tr. 2907). He testified that he liked her and that she had never been angry or lost her temper with him despite problems that were occurring in the house at the time as between petitioner and his wife as well with Claudia's son. (Tr. 2907). The petitioner stated that he had conversations with Claudia on different subjects of his life and the problems he was having. (Tr. 2906). Farino testified that they had spoke about his depression arising from the death of his brother; his problems with drug use; and problems he was having with his marriage to Claudia's daughter. (Tr. 2906). The petitioner went on to state that she also confided in him. (Tr. 2906).
The Antiterrorism and Effective Death Penalty Act (the "AEDPA") provides that a federal court may grant habeas corpus relief to state prisoners with respect to any claim that was adjudicated on the merits in state court proceedings only if the adjudication of that claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005) (discussing the federal habeas review standard set forth in Section 2254). However, where the state appellate court has declined to reach the merits of a claim, federal habeas review is de novo. Fernandez v. Smith, 558 F. Supp. 2d 480, 504 (S.D.N.Y. 2008).
B. As to Petitioner's Sufficiency of the Evidence Claim
A petitioner who challenges the sufficiency of the evidence supporting his conviction "bears a heavy burden." United States v. Griffith, 284 F.3d 338, 348 (2d Cir. 2002) (citing United States v. Velasquez, 271 F.3d 364, 370 (2d Cir. 2001)). To obtain habeas corpus relief, the Court must find that, when viewing the evidence most favorably to the prosecution, no rational trier of fact could find guilt beyond a reasonable doubt.
Farrington v. Senkowski, 214 F.3d 237, 240--41 (2d Cir. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979)).
In addition, the Court must defer to the jury's determination of the weight given to conflicting evidence, witness credibility, and inferences drawn from the evidence. United States v. Vasquez, 267 F.3d 79, 90--91 (2d Cir. 2001) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942) and United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998)). The Court's "inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 861, 122 L.Ed. 2d 203 (1993). A federal habeas court must "credit every ...