The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Pro se Petitioner Johnathan A. Hendrie brings this Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, asserting that his imprisonment is in violation of the United States Constitution. Specifically, Hendrie alleges constitutional violations based upon: (1) the denial of his motion to suppress; (2) prosecutorial misconduct; (3) denial of a "charge-down" of the lesser-included offenses under the First-Degree Murder count; (4) an improper sentence; and (5) denial of his motion to vacate the conviction. Dkt. No. 1, Pet. at pp. 5-6.
For the reasons that follow, the Petition is DENIED.
On February 5, 1998, Petitioner Johnathan A. Hendrie was convicted by a Clinton County Court jury of one count of Murder in the First Degree (N.Y. PENAL LAW § 125.27), one count of Murder in the Second Degree (N.Y. PENAL LAW § 125.25), one count of Burglary in the First Degree (N.Y. PENAL LAW § 140.30), one count of Kidnapping in the Second Degree (N.Y. PENAL LAW § 135.20), two counts of Criminal Use of a Firearm in the First Degree (N.Y. PENAL LAW § 265.09), one count of Criminal Possession of a Weapon in the Second Degree (N.Y. PENAL LAW § 265.03), one count of Making a Punishable False Written Statement (N.Y. PENAL LAW § 215.50), one count of Menacing in the Second Degree (N.Y. PENAL LAW § 120.14(1)), and one count of Criminal Mischief in the Fourth Degree (N.Y. PENAL LAW § 145.00). People v. Hendrie, 805 N.Y.S.2d 464 (N.Y. App. Div. 3d Dep't 2005).*fn1
The Honorable Kevin K. Ryan, Clinton County Judge, sentenced Petitioner to the following terms of imprisonment, all of which were set to run concurrently: twenty-five (25) years to life for First Degree Murder; twenty-five (25) years to life for Second Degree Murder; twelve-and-a-half (12 1/2 ) to twenty-five (25) years for First Degree Burglary; five (5) years for Criminal Use of a Firearm in the First Degree; seven-and-a-half (7 1/2 ) to fifteen (15) years for Criminal Possession of a Weapon in the Second Degree; three-and-a-half (3 1/2 ) to seven (7) years for Criminal Possession of a Weapon in the Third Degree; and one (1) year for each of his misdemeanor convictions (Making a Punishable False Written Statement, Menacing in the Second Degree, and Criminal Mischief in the Fourth Degree). R., Sentencing Tr., dated Feb. 5, 1998, at pp. 14-16. In addition to those concurrent sentences, Petitioner was assessed consecutive sentences of an indeterminate term of five (5) to ten (10) years of incarceration for Second Degree Kidnapping and a determinate term of five (5) years of incarceration for Criminal Use of a Firearm in the First Degree. Id. at p. 17. Thus, Petitioner was sentenced to a cumulative prison sentence of thirty-five (35) years to life. Id. at p. 18.
On September 14, 2000, Petitioner filed a motion to vacate the judgment of conviction, pursuant to N.Y. CRIM. PROC. L. § 440.10, on the ground that newly discovered evidence undermined the conviction. R., Pet'r § 440 Mot., dated Sept. 14, 2000. The trial court denied Petitioner's § 440 motion in all respects. R., Decision/Order on § 440 Mot., dated Aug. 14, 2001. Thereafter, Petitioner appealed his conviction as well as the trial court's denial of his § 440 motion to the New York State Supreme Court, Appellate Division, Third Department, which modified his conviction by reversing his conviction for Criminal Use of a Firearm in the First Degree and vacating the five (5) year consecutive sentence attached to that conviction. People v. Hendrie, 805 N.Y.S.2d at 470-71. The Appellate Division affirmed Petitioner's other convictions as well as the trial court's denial of his § 440 motion. Id. Petitioner's application for leave to appeal that decision was denied. People v. Hendrie, 6 N.Y.3d 776 (2006).
Petitioner filed the instant Habeas Petition on March 23, 2006. Dkt. No. 1, Pet.
B. Summary of the Evidence Presented at Trial
Petitioner and Helen LaPorte lived together "on and off" shortly after they met in the early 1990s until February 1996, when they moved into an apartment at 87 Blackman Corners Road, located in Mooers Forks, New York. R., Trial Tr., dated Nov. 17-24, 1997, at pp. 578-84. In July 1996, they had an argument and LaPorte moved into her ex-husband's house along with her three children for three days. Id. at p. 587. During that time, LaPorte obtained an order of protection against Petitioner and, upon her return to the apartment, Petitioner moved out. Id. at pp. 588 & 591. However, LaPorte testified that Petitioner continued to harass her by constantly calling and threatening her on the phone. LaPorte reported the calls to the police, who twice arrested Petitioner. Id. at pp. 591-92.
Two different witnesses testified that after Petitioner and LaPorte broke up, Petitioner told them he was contemplating committing violent acts. Petitioner's friend Russell Macey testified that Petitioner said he was going to "do Helen in and he was going to take and do her boyfriend in and then that he was going to take and do himself in." Id. at p. 516. Likewise, Petitioner's brother-in-law, Michael Burnell, testified that Petitioner told him he wanted to reconcile with LaPorte and that if he had a gun he would kill LaPorte, her family, and himself. Id. at p. 719.
On December 21, 1996, Petitioner called LaPorte and told her he wanted to bring a Christmas present over to her children. Id. at p. 598. After conferring with her boyfriend, Robert Lamberton (a/k/a "Timmy"), LaPorte agreed to allow Petitioner to pull into her driveway to drop off the gift, which he indicated was heavy. Id. at p. 600. Thereafter, Petitioner parked in the driveway and approached the front doorway with a wrapped box in hand, where LaPorte awaited him. Id. at pp. 606-07. When LaPorte went to take the box, Petitioner reached through the wrapping, pulled out a shotgun, pointed it at LaPorte, and forced her back into the house. Id. at pp. 607-08.
While Lamberton maintained his position at the kitchen table, Petitioner and LaPorte began to argue and push each other. Id. at p. 609. Petitioner produced a piece of rope and ordered LaPorte to tie up Lamberton, an order LaPorte refused. Id. Petitioner and LaPorte continued to yell and struggle with each other, and at one point Petitioner told Lamberton, "You will never fucking love her as much as I do." Id. at p. 610. At some point shortly thereafter, Petitioner shot Lamberton, prompting LaPorte to "attack" Petitioner, who pushed her out of the way and left the room, apparently in search of Lamberton, who was no longer in the kitchen. Id. at pp. 612-13. At that point, LaPorte answered a telephone call from her son's friend and immediately instructed him to tell his mother to call the police. Id. at p. 613. After Petitioner left the room, he ran from the house and smashed the telephone box with the gun, disabling the phone connection. Id. at pp. 1350-51 & 1381-82.
Then, LaPorte went upstairs and tried unsuccessfully to open the bathroom door, which was blocked by Lamberton, who was laying against it. Id. at p. 613. LaPorte testified that Petitioner approached her from behind and pulled her down the stairs, telling her she was going to go with him. Id. at p. 614. Petitioner forced LaPorte into his car and drove her to a wooded area. Id. at pp. 615-16. Petitioner told LaPorte he wanted her to stay the night with him in the woods and read letters he had written. Id. at p. 617. After LaPorte read his letter, Petitioner allowed her to leave in his car; LaPorte drove to her sister's home and they called the police. Id. at p. 621.
Around eight o'clock p.m., New York State Trooper Scott Leidner responded to a domestic assault call at 87 Blackman Corners Road and, after waiting for backup, entered the house and found blood and a body in the upstairs bathroom. Id. at pp. 839-41 & 846-47. Thereafter, investigators encountered Petitioner behind his sister's trailer home. Investigator Jonathan Denny arrested him and advised him of his Miranda rights. Id. at p. 1016. At some point either before or after his rights were read to him, Petitioner, who was crying, said that he was sorry and didn't mean to kill anybody. Id. at pp. 1017-18. Petitioner was subsequently interviewed at the Plattsburgh State Police barracks, where he confessed to bringing a loaded, sawed-off shotgun to LaPorte's home and that he "threw the gun up and it went off," striking Lamberton. Id. at p. 1073. After concluding the interview, investigators typed Petitioner's statement and read it aloud with him. Petitioner asked the investigator to make three changes to the statement, initialed each page, and signed it. Id. at pp. 1084-85. Petitioner also drew a map of the wooded area where he took LaPorte and described to Investigator Richard Sypek where he left the shotgun, which was recovered in the early morning hours of December 22, 1996. Id. at pp. 759 & 788.
Dr. Barbara Wolf performed an autopsy of Lamberton's body, determining the cause of death to be internal bleeding caused by shotgun wounds. Id. at p. 1157. However, Dr. Wolf also testified that Lamberton sustained a blunt impact wound to the back of his head which was consistent with being struck with the barrel of a shotgun, and that substantial bleeding in the area of the wound indicated Lamberton received the blow prior to his death. Id. at p. 1177.
Petitioner took the stand in his own defense. He testified that after he entered LaPorte's home, he and LaPorte fought each other and "were pulling [back and forth] on the gun and the gun went off." Id. at pp. 1348-49. Petitioner also stated that at the time the gun went off, he did not know Lamberton's location and never threatened to shoot him. Id. at p. 1350. Petitioner stated that after the shot was fired, he did not look for Lamberton and never went upstairs. Id. at pp. 1350-52.
Psychologist Dr. Sally Summerell testified on Petitioner's behalf, asserting that she evaluated Petitioner for Social Security benefits in 1992, and at that time determined his IQ to be within the range of "mild retardation." Id. at pp. 1037-38. Summerell opined that it "is very unlikely" Petitioner would have understood the Miranda warnings, and that she doubted his ability to create and carry out a "realistic" plan. Id. at pp. 1039 & 1052-56.
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication either
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 Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006); DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001).
The petitioner bears the burden of proving by a preponderance of the evidence that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Rivera v. New York, 2003 WL 22234697, at *3 (S.D.N.Y. Aug. 28, 2003). The AEDPA also requires that "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § ...