The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner, Dwight Dilbert ("Petitioner" or "Dilbert"), filed a timely petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction. Petitioner was convicted, following a jury trial, of depraved indifference murder (N.Y. Penal Law ("Penal Law") §125.25 ), and aggravated criminal contempt (Penal Law 215.52). Judgment was entered on May 24, 2001, in New York Supreme Court, Erie County (Forma, J.). Petitioner's conviction was unanimously affirmed by the Appellate Division, Fourth Department, and leave to appeal to the New York State Court of Appeals was denied. People v. Dilbert, 1 A.D.3d 967 (4th Dept. 2003), leave denied 1 N.Y.3d 626 (N.Y. 2004).
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
By indictment number 99-2132-001, Petitioner was charged with one count each of intentional murder in the second degree (Penal Law 125.25 ), depraved indifference murder*fn1 , and aggravated criminal contempt, arising out of the following incident. In the late night, early morning hours on October 18-19th, 1999, Buffalo City Police Officers were called to a Burger King Restaurant on Downing and South Park Streets in Buffalo, New York. (T. 225)*fn2.
Petitioner had called the police to meet him at the Burger King to "check the welfare" of Stacy Bley, a woman with whom he shared a child. (T. 225-6). Petitioner was concerned because Bley had not met him at a Wilson Farms store as they had arranged. Id. Officers Robert Bigelow and David Acosta agreed to go to Bley's apartment at 12 Latona Court to check her welfare. (T. 226-7). The officers banged on the door with there flashlights and waited for several minutes, but Bley did not respond. (T. 228-9). They returned to the Burger King and told Petitioner to go home and try to contact Bley tomorrow. (T. 229).
Approximately thirty to forty minutes later, police received another call to check Bley's welfare. (T. 230). This time, Petitioner informed police that he had gone to 12 Latona Court and noticed a back window open. (T. 230-1). Officers Bigelow, Acosta, and Lieutenant Neil Shropshire then went back to Bley's apartment.
Bigelow stepped on a ledge and used his flashlight to look into the open back window, and saw Bley's body laying naked on the bedroom floor beneath the window, with a telephone cord tied around her right leg attached to a linen closet in the hall and an extension cord tied around her neck connected to the closet rod in the bedroom. (T. 234-8). The Officers then went to the front, kicked in the door, and found Bley's daughter in another bedroom.
An autopsy revealed that Bley died of strangulation requiring approximately five or six minutes of pressure. (T. 707-722). DNA evidence revealed that Petitioner had sex with Bley no more that 24 hours from the time her body was found. (T. 695, 755-61, 970-1). Fiber analysis revealed that fibers from the clothing Petitioner wore that evening were on Bley's clothing and in Bley's apartment, and fibers from a green velour blanket in Bley's apartment were on Petitioner's clothing. (T. 659-70). In addition, several witnesses identified Petitioner's grey car parked in front of Bley's residence on October 18th, and one witness saw the defendant with Bley and her daughter outside the apartment at approximately 6:45 in the evening. (T. 400-04, 432).
Bley and Petitioner had a contentious and sometimes violent relationship. Petitioner had written Bley a letter almost two years before Bley was killed, accusing her of having a baby with another man and saying, "I haven't shit on you yet like I'm gonna do!" and "Die slow my hoe, my plan will make sure you and your daughter don't grow no more." (T. 175-77). Approximately seven months before Bley was killed, Petitioner was arrested and charged with burglary and criminal mischeif for breaking through the rear window of Bley's apartment. (T. 198). Bley had scratches on her body and red marks in her neck area after the incident. (T. 199). Petitioner plead guilty to attempted burglary and an order of protection was issued in favor of Bley against Petitioner. (T. 203-6). Prior to sentencing on the attempted burglary charge, Petitioner met one of Bley's co-worker's at the Erie County Fair and said to her, "if I have to do some time behind her [Bley], I'll kill the bitch," referring to his impending sentencing on the attempted robbery charge. (T. 189-193). The day Bley was killed, Petitioner called her at work. Bley's co-worker testified that Bley was agitated and said, "Dwight, why are you calling me here. Leave me the fuck alone. I don't want you to come over tonight. Why don't you just leave me alone. Dwight, don't come over. I don't want you, you fucking asshole. Leave me the fuck alone, Dwight."
Petitioner was convicted, following a jury trial, of depraved indifference murder and aggravated criminal contempt. Petitioner appealed his conviction to the Appellate Division, Fourth Department, raising the following issues: (1) the trial court erroneously admitted the letter written by Petitioner to Bley and the testimony of the co-worker he spoke to at the Erie County Fair; (2) the verdict was against the weight of the evidence; (3) the sentence was unduly harsh and excessive; (4) ineffective assistance of trial counsel; and (5) prosecutorial misconduct for the failure to require the paramedics to testify at the grand jury proceeding, the failure to turn over a photo-array, and withholding an exculpatory DNA finding. The Appellate Division held that he was not denied a fair trial based on the trial court's decision to admit the threatening letter and the testimony of Bley's co-worker, because they were both evidence of motive and intent to kill; the verdict was not against the weight of the evidence; the sentence was not unduly harsh or excessive; he received effective assistance of counsel, and, in any event, he did not identify any errors that would render counsel's performance ineffective; the claim for prosecutorial misconduct in ...