The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge
REPORT and RECOMMENDATION
This matter has been referred to me for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and LOCAL RULES N.D.N.Y. 72.3(c).*fn1
Petitioner, Harold Orcutt, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a January 20, 1999, judgment of conviction from the Schoharie County Court. (Petition ("Pet.") ¶¶ 1--2, Dkt. No. 1). He raises following grounds in support of his petition: (1) the evidence was insufficient to support a conviction of "depraved indifference" murder; (2) New York failed to apply recent changes in its case law to petitioner's case while it was still pending on direct appeal, which is purportedly contrary to, and an unreasonable application of, clearly established federal law; and (3) petitioner's trial counsel provided ineffective assistance. (Pet. ¶ 12).
Petitioner filed his pro se habeas corpus petition on February 19, 2009. (Dkt. No. 1). Respondent has filed an answer, memorandum of law, and the pertinent state court records. (Dkt. Nos. 7, 8, 10). For the following reasons, this court finds that the petition should be dismissed.
On October 20, 1997, petitioner was home with his girlfriend, her two children from a previous marriage, and their two children.*fn2 That evening, petitioner went upstairs and found his eight-month old daughter unresponsive and not breathing. She was later pronounced dead at the hospital. The following day, petitioner signed a statement, indicating that the night before, he had taken his eight-month old daughter to bed. The baby struggled as he took her upstairs and tried to put her in her crib. Petitioner held his daughter and shook her as hard as he could, until her eyes rolled back in her head. He then wrapped her head in a blanket and pushed another blanket against her face, squeezing the front and back of her head until she stopped breathing. He then went back downstairs.
B. State Court Proceedings
A Schoharie County Grand Jury charged petitioner with two counts of Murder in the Second Degree (N.Y. PENAL LAW § 125.25(1), (2))*fn3 and one count of Endangering the Welfare of a Child (N.Y. PENAL LAW § 260.10(1)).*fn4 After a jury trial, petitioner was acquitted of intentional murder, but convicted of "depraved indifference" Murder in the Second Degree (N.Y. PENAL LAW § 125.25 (2)). He was sentenced to a term of 25 years to life imprisonment. (Pet. ¶¶ 3--6).
On or about January 12, 2007, petitioner filed a motion to vacate his conviction pursuant to N.Y. CRIM. PROC. LAW section 440.10(h), based upon various allegations of ineffective assistance of trial counsel. Schoharie County Court Judge George R. Bartlett, III, denied the motion without a hearing on May 18, 2007. People v. Orcutt, Indict. No. 97-26 (County Ct. May 18, 2007) (attached as exhibit to Pet., Dkt. No. 1 at 16--25).
Petitioner's direct appeal and the appeal from the denial of his section 440.10 motion were consolidated.*fn5 On March 27, 2008, the Appellate Division, Third Department, affirmed petitioner's conviction and affirmed the denial of his section 440.10 motion to vacate. (Pet. ¶ 9(a)--(d); People v. Orcutt, 49 A.D.3d 1082 (3d Dep't 2008)). The New York Court of Appeals denied leave to appeal on June 18, 2008. (Pet. ¶ 9(e); People v. Orcutt, 10 N.Y.3d 938 (2008)).