The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Ronald Brown ("petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction of Murder in the Second Degree (N.Y. Penal L. § 125.25(2)), Criminal Possession of a Weapon in the Second Degree (former N.Y. Penal L. § 265.03(2)), and Criminal Possession of a Weapon in the Third Degree (former N.Y. Penal L. § 265.02(4)) in Monroe County Supreme Court, entered on January 2, 1996. For the reasons that follow, the petitioner is not entitled to habeas relief and the petition is dismissed.
II. Factual Background and Procedural History
In the early morning hours of January 26, 1995, Calvin Maxwell ("the victim") was shot and killed at the home of his close friend, Ronald Brown ("petitioner") during an altercation at 36 Judson Street in the City of Rochester. Petitioner's three children were inside the home at the time of the shooting. After hearing shouts, "tables falling," "stumbling," and a door slamming, Ebony Brown, petitioner's daughter, called her uncle to pick her up and her siblings. T. 470-75.*fn1 Petitioners's next-door neighbors also heard the disturbance, and called 911. T. 344-46, 384. In the meantime, petitioner's brother ("Reggie") arrived at the house in his minivan. Upon entering the house, Reggie was told by petitioner that "they came in here," and that the victim was hurt and needed an ambulance. Reggie first checked on the children, and then observed the victim, injured, lying on the floor. T. 579-604. At some point, another friend of the family entered petitioner's residence and assisted Reggie in carrying the victim to Reggie's van. That individual then left the house. T. 605-07. Petitioner then left the house with his children, and they all got inside Reggie's vehicle. When petitioner exited the house, his neighbor observed petitioner with a gun in his hand. T. 390-91.
Responding to a radio dispatch that shots were fired near 36 Judson Street and that someone was seen placing what was possibly a body into a van, Rochester police officers arrived at the house in their patrol car and proceeded to follow the minivan. T. 683-85. With backup present, Police Officers Kevin Durawa and Nicholas Joseph activated the emergency lights of their police car to stop the vehicle. T. 686-87. Petitioner was in the front passenger seat; his brother, Reggie was in the driver's seat. Officer Durawa saw the victim lying on the middle bench seat of the van, alive, but injured from a gunshot wound. The officers then began to remove the occupants from the van at gunpoint. T. 689-90.
Petitioner was seated in a patrol car when a third officer asked petitioner what happened. T. 768. Petitioner responded that two men had broken into his home shot the victim after a struggle, and that the gun was somewhere in the house. T. 768. Petitioner led police back to 36 Judson to locate the weapon, but, after a search outside and on the first floor, the gun was not recovered.*fn2 Petitioner would not sign a consent form for the police to conduct a full search of the house. At that time, the house was not searched, but it was secured. T. 769-776. Petitioner was then taken to the Public Safety Building for questioning. T. 737. After being read his Miranda rights and waiving them, he told detectives that he and the victim were in the house when they heard a knock on the door. The victim answered the door and two black males wearing "black hoodies" and armed with a gun entered the home. A struggle ensued, during which one of the men shot the victim before petitioner managed to disarm him. T. 856. After questioning by detectives, petitioner acknowledged that the gun in fact belonged to him, but maintained that he did not shoot the victim. Thereafter, petitioner made no further statements to police. T. 856-57.
Petitioner was charged with two counts of Murder in the Second Degree (under alternative theories), Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree in Monroe County Supreme Court. A probable cause/suppression hearing was held on July 24, 1995. By written decision dated August 11, 1995, the state court found that there was probable cause to arrest petitioner, and that his statements to police would not be suppressed at trial. A jury trial was held in November of 1995 before Justice Francis Affronti. Petitioner's defense was that two men came into his house at 36 Judson and shot the victim, although counsel did acknowledge that the gun belonged to petitioner. Ebony Brown testified for the defense; petitioner did not testify at trial.
Petitioner was found guilty of depraved indifference murder and criminal weapon possession, and was subsequently sentenced as a second violent felony offender to an aggregate term of imprisonment of twenty-eight and a half years to life. Sentencing Mins. 8-14.
Through counsel, petitioner filed a brief to the Appellate Division, raising nine points for review. See Respondent's Appendix ("Appx.") C. The Fourth Department unanimously affirmed the judgment of conviction. People v. Brown, 23 A.D.3d 1090 (4th Dept. 2005); lv. denied, 6 N.Y.3d 810 (2006).
Petitioner then filed a timely petition for habeas corpus, arguing that: (1) New York's depraved indifference murder statute is unconstitutionally vague; (2)the trial court admitted unwarned statements in violation of his Fifth Amendment right against self-incrimination; (3) the verdict was against the weight of the evidence; (4) the sentence is excessive. Petition ("Pet.") ¶ 12(A)-(D) (Dkt. #5). For the reasons that follow, I find that the petitioner is not entitled to habeas relief, and the petition is dismissed.
A. General Principles Applicable to Federal Habeas Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "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," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).
A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds ...