The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
By a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, pro se petitioner Antonio Melendez ("Melendez" or "petitioner") has challenged the constitutionality of his state custody pursuant to a 2002 judgment of conviction on charges of depraved indifference murder and weapons possession charges. The parties have consented to disposition of the instant petition by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
Melendez's convictions stem from the murder of Stephen Hewitt ("Hewitt" or "the victim") on October 13, 2000. That evening, Hewitt and his friend, Thomas Palermo ("Palermo"), met for a night of bar-hopping in the City of Rochester. Palermo, after having consumed alcoholic beverages and cocaine, decided that he wanted to replenish his drug supply. Trial Transcript at 417 (hereinafter "T.__"). Between 9:30 p.m. and 10:00 p.m., Palermo left the downtown-area bar in his pickup truck with Hewitt as his passenger.
Palermo drove his truck onto Hague Street in search of someone to sell him cocaine. He was waved down by a man who agreed to bring him cocaine in exchange for $100. Palermo, who was drunk, handed over the cash. However, the man never returned with the cocaine. Palermo waited five to ten minutes and then drove down Hague Street, turned around, and drove back down the street. Palermo was flagged down by a second man. After some discussion the second man ripped a $100-dollar bill out of Palermo's hand and ran.
At that point, Hewitt, who was intoxicated, became very upset with Palermo having been ripped off. T.420-26. Hewitt got out of Palermo's truck and started shouting something to the effect of, "Where's our money, where's our stuff?"T.427-28. Hewitt was punched three times by a man identified only as "David" and fell to the ground. Jason Brogan ("Brogan"), a bystander watching the events unfold, called to Palermo to "get his buddy out of there." T.353-55, 428, 528-29. Palermo walked over to Hewitt, who was lying on the ground, helped him up, and walked him back to the truck. T.356, 428, 528-29.
By this point, there was a crowd of about 20 to 25 surrounding Hewitt. Some of the bystanders were standing as close as a foot away from Hewitt. Petitioner, holding a gun, then walked up to Hewitt and stated,"Fuck this." Petitioner fired one time, striking Hewitt in the head. T.358-59, 429, 530-31, 685. At the moment petitioner pulled the trigger, Palermo was seated directly next to Hewitt. Other witnesses who had gathered around the truck were as close as eight inches from Hewitt when he was shot. T.376, 428-30, 686. Hewitt died of a single gunshot wound to the facial area of his skull. T.503.
After shooting Hewitt, petitioner fled on foot, firing two additional shots into the air as he ran. Petitioner then drove away in his car, a white Honda Civic. T.735-36. Palermo did not realize that his companion had been shot and killed, and so he drove his truck away, only to have Hewitt's corpse fall out of the passenger door a short distance down Hague Street.
Petitioner initially gave a statement to the police stating that he did not mean to shot Hewitt. At trial, however, petitioner claimed that he shot Hewitt in self-defense. Petitioner testified that he intentionally fired the gun at Hewitt's face because he "figured" Hewitt was reaching for a gun. Petitioner also said it "looked like" Hewitt was reaching for a gun. Petitioner explained, "I got behind him, when he turned around I seen [sic] what I thought was a gun in his hand and I fired a shot." T.735. Petitioner further stated that prior to shooting Hewitt, petitioner had gone to his car to retrieve his gun. After obtaining the gun, petitioner ran back to Palermo's truck and shot the victim. T.755.
Petitioner testified on cross-examination that he understood that firing a gun into someone's face could result in death. T.788. Additionally, petitioner conceded that he could have gotten into his car and left, but chose not to. T.783.
The jury rejected petitioner's justification (self-defense) argument. On May 24, 2002, the jury returned a verdict convicting him of one count of second degree (depraved indifference) murder (New York Penal Law § 125.25 (2)), and both charges of criminally possession a weapon. The jury acquitted petitioner of murder in the second degree under an intentional theory. Petitioner was sentenced on June 12, 2002 to concurrent terms of imprisonment, the greatest of which was an indeterminate term of imprisonment of 25 years to life.
Petitioner appealed his convictions to the New York State Supreme Court, Fourth Department. His primary argument was that the evidence did not support the conviction for depraved indifference murder, because "the undisputed evidence at trial established that the decedent in this case . . . was shot with the intent to kill" on the part of the perpetrator. Petitioner's Appellate Division Brief, p. 6, Respondent's Appendix "C". Petitioner acknowledged that this issue was unpreserved, but asked the Appellate Division to reach the issue under its discretionary "interests of justice" review power. In the alternative, petitioner argued that trial counsel was ineffective in failing to preserve the legal insufficiency claim by timely objection. The Fourth Department did not address the latter claim, because it chose to review the legal sufficiency claim on the merits, which it rejected it in a memorandum decision and order dated October 1, 2004. The Fourth Department held that petitioner's "act of holding a gun that ultimately discharged close to the victim's face in the course of a scuffle was an act sufficiently reckless to create a grave and substantial risk of death." People v. Melendez, 11 A.D.3d 983 (App. Div. 4th Dept. 2004).
Some two weeks after the Fourth Department affirmed his conviction, on October 19, 2004, the New York Court of Appeals issued its decision in People v. Payne, 3 N.Y.3d 266 (N.Y. 2004), in which it declared, for the first time, that "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder." Payne, 3 N.Y.3d at 272. By motion dated October 28, 2004, petitioner's appellate counsel sought re-argument, or, in the alternative, re-consideration, of the decision upholding the conviction, primarily on the basis that Payne mandated reversal. In addition, petitioner's appellate counsel argued that the Fourth Department had misapprehended the facts of the case when it indicated that the shooting had occurred "in the course of a scuffle." The Fourth Department denied the motion for reargument by order dated December 30, 2004. People v. Melendez, 13 A.D.3d 1235 (App. Div. 4th Dept. 2004).
Melendez then sought leave to appeal to the New York State Court of Appeals with regard to the original Fourth Department order affirming his conviction. Acknowledging that the evidentiary insufficiency claim had not been properly preserved (and therefore was outside the scope of review of the Court of Appeals), petitioner's leave application raised only one ground -- that counsel had been ineffective for failing to raise the legal insufficiency claim. See Respondent's Appendix "K". The Court of Appeals denied leave by decision and order dated May 17, 2005. People v. Melendez, 4 N.Y.3d 888 (N.Y. 2005). Petitioner did not seek certiorari from the United States Supreme Court, and thus his conviction became final (for AEDPA purposes) 90 days later, on August 15, 2005. The petition in this case was filed on or about August 9, 2006.
Petitioner argues that he is entitled to habeas relief because (1) the evidence was insufficient to support the conviction of depraved indifference murder, because the proof at trial would support only an intentional, rather than a reckless, murder; (2) trial counsel was ineffective in failing to properly preserve the legal insufficiency issue by timely objection; and (3) the Fourth Department misapprehended the facts by reciting that the shooting took place "in the course of a scuffle" and therefore its denial of reargument on the legal sufficiency issue was erroneous.
Respondent concedes that Melendez's second ground for relief (ineffective assistance of trial counsel based upon the failure to preserve the insufficiency-of-the-evidence claim) is properly exhausted and timely. Respondent argues that the first and third claim, however, have not been brought within the applicable statute of limitations, 28 U.S.C. § 2244(d)(1).*fn1 In the alternative, respondent argues, neither the first (the evidence was insufficient to support the conviction of depraved indifference murder under People v. Payne, because the proof at trial supported only an intentional, rather than a reckless, murder) nor the third claim (the Appellate Division erred in denying reargument on the basis that it had misapprehended the underlying facts by reciting that the shooting took place "in the course of a scuffle") have been properly exhausted by being fairly presented in a complete round of appellate review in the state courts. Finally, respondent extensively argues the lack of merit of all three claims.
The Court is not convinced that the first and third claims are untimely. Furthermore, both claims appear to have been properly exhausted. Nonetheless, none of the claims have merit under any standard of review. In this Court's opinion, the interests of judicial economy are better served by directly addressing the merits of Melendez's habeas claims rather first examining the procedural hurdles of timeliness and failure to exhaust.
For the reasons that follow, the ...