The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
REPORT AND RECOMMENDATION
Owen Clarke seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his conviction for Manslaughter in the First Degree in New York County Supreme Court on the ground that he received ineffective assistance of counsel at his trial. For the reasons stated below, the petition should be denied.
A. Indictment and Trial Evidence
On November 23, 1993, a grand jury charged Clarke with Murder in the Second Degree in violation of New York Penal Law § 125.25(1) for the shooting death of Keith Hayes on May 13, 1991. See Indictment No. 11467/93 (annexed as Ex. A to Answer and Appendix Opposing Petition for a Writ of Habeas Corpus, filed Feb. 19, 2010 (Docket # 9) ("Answer")). In 2004, the authorities located Clarke in Jamaica where he had fled after the shooting. See Affirmation in Response to Defendant's Motion to Vacate Judgment (annexed as Ex. C(1) to Answer) ("People's Aff.") ¶ 5.*fn1 Clarke was extradited and brought to trial in February 2006. Id.
The trial testimony reflected that the victim, Hayes, worked for Clarke selling drugs. (See Wilson: Tr. 210-11).*fn2 After midnight on May 13, 1991, Hayes was speaking with Lennwes Meyers in the hallway of his building located at 121 Saint Nicholas Avenue in Manhattan. (See Meyers: Tr. 449, 451-52). Hayes told Meyers that he had spent $30 from the proceeds of a recent drug sale on food and cigarettes even though he owed that money to Clarke. (See Meyers: Tr. 452).
After their conversation, Meyers saw Clarke drive up in a blue pick-up truck and suggested that Hayes speak with him. (See Meyers: Tr. 453-55). After Hayes walked over to Clarke, their conversation quickly escalated, and the two began fighting. (See Meyers: Tr. 461-64). Clarke testified that Hayes regularly failed to pay him the full proceeds from drug sales, and that he was unsatisfied with Hayes's excuse that evening. (Clarke: Tr. 764-65). Clarke also testified that he had "used cocaine" ten minutes before his encounter with Hayes. (Clarke: Tr. 765-66). Hayes pinned Clarke against the truck in a wrestling hold while Clarke struggled to get free. (See Meyers: Tr. 464). Hayes finally released Clarke after he yelled "let me go." Id. After the struggle, Clarke's uncle, named Gary, arrived at the scene having exited Hayes's building where he also lived. (See Meyers: Tr. 472). Clarke walked out of sight around the corner to 116th Street, where Gary followed him. (See Meyers: Tr. 474).
Meyers along with two other eyewitnesses, Susie Wilson and Elaine Boynes, testified that after five minutes, Clarke came back around the corner with a gun in his hand. (See Meyers: Tr. 512; Wilson: Tr. 237; Boynes: Tr. 564). Clarke approached Hayes, and when standing approximately six feet away fired once at the ground and then twice while aiming at Hayes hitting him in the thigh and stomach. (See Boynes: Tr. 564-71; Wilson: Tr. 239-40; Meyers: Tr. 480). After shooting Hayes, Clarke fled the scene. (See Boynes: Tr. 571-72).
Clarke testified that he acted in self-defense. He stated that he remained around the corner with his uncle and a man named Sheldon when Hayes approached them. (Clarke: Tr. 769). After Sheldon handed Clarke a gun, he pointed it at Hayes and instructed him to stop walking. (See Clarke: Tr. 769-70). Clarke felt "threatened" and believed that Hayes "at that time . . . had something in his jacket" and that "he was going to do harm to me." (Clarke: Tr. 770). Clarke then fired the gun at the ground, see id., but Hayes continued to walk towards him, (Clarke: Tr. 771). Clarke then "raised [his] hands slightly to fire at [Hayes's] foot or his leg and . . . fired the weapon." Id. Though he did not intend to kill Hayes, Clarke was close enough to Hayes to aim at him and was in fact "aiming for his leg" when he shot the gun. (Clarke: Tr. 789).
Hayes was later taken to St. Luke's Hospital where he died from the gun shot wounds. (See Smith: Tr. 171, 173-74). After the incident, Clarke fled to Jamaica where he lived until his extradition in 2004. See People's Aff. ¶ 5.
B. Charging Conference and Jury Verdict
Prior to closing arguments, Justice Solomon held a charging conference during which he asked both sides if they wished to submit lesser included offenses to the jury. (See Tr. 882). The prosecution requested a charge for Manslaughter in the First Degree (see Tr. 883), defined under N.Y.P.L. § 125.20(1) as an act committed with the "intent to cause serious physical injury to another person" thereby causing "the death of such person or of a third person." Defense counsel objected, stating "[t]he People's theory is he shot to kill. That's their theory, lets go with it." (Tr. 883). Justice Solomon found there was sufficient evidence to sustain a lesser included charge of Manslaughter in the First Degree and that he would submit it to the jury. (See Tr. 883-84). Defense counsel then proposed Assault in the First Degree as a lesser included offense, id., but later withdrew the request (see Tr. 915). In addition, Justice Solomon agreed to give both a justification instruction and an intoxication instruction to the jury. (Tr. 887, 908).
The jury acquitted Clarke of Murder in the Second Degree but found him guilty of Manslaughter in the First Degree. (See Tr. 1048). On April 25, 2006, Justice Solomon sentenced Clarke as a second felony offender to eight to sixteen years' imprisonment. (See S. 8).