The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Proceeding pro se, Kenneth Baker ("Baker" or "Petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state custody pursuant to a judgment of conviction following a jury trial in New York State Supreme Court (Monroe County) on charges of murder in the second degree (New York Penal Law ("P.L.") §125.25(2)) and assault in the first degree (P.L.§120.10 (1)). Baker was sentenced as a second felony offender to consecutive terms of imprisonment of 25 years to life and 15 years, on the murder and assault convictions, respectively.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
Shortly before 10:00 p.m. on June 1, 2001, Preston Mitchum ("Preston"), his older brother Jerold Mitchum ("Jerold"), and their friends Christopher Jones ("Christopher") and Leroy Robinson ("Leroy") were hanging around outside of the Good Guy's Mini-Mart on North Clinton Avenue in Rochester (192-196, 292-295, 358-362)*fn1 . Preston and Christopher were sharing some food, while Jerold and Leroy were a few feet away in the store entryway. Baker came running across North Clinton Avenue, wielding a revolver hidden under a paper sack (197-201, 298-299, 302). All of the witnesses described Baker as wearing camouflage pants and a hooded jacket (described as a "hoody" by the witness) (200, 300, 366). Baker ran across the street and, according to the witnesses, "[b]efore he even got to the curb, he just started shooting" (591). The four friends were all "close" together when the shooting began (369). Preston and Christopher were two or three feet apart when the shooting started, and Leroy and Jerold were likewise only a few feet further away (204, 294, 370- 372).
Leroy was not positive after the first shot whether anyone had been hit. He stated, however, "[W]e were so close, I knew somebody got hit" (369). Preston was shot first, followed by Christopher, who fell to the ground (206-208). Petitioner then turned his full attention on Christopher, firing at him until the gun clicked empty (210-214. 372, 591-594). Jerold and Leroy, meanwhile, had fled (304). When the shooting stopped, they came back to check on Preston until the paramedics arrived (309-310, 373).
Preston died the next day as a result of respiratory distress syndrome caused by a bullet wound to his chest, which had damaged the larynx, lung and veins in the neck (311, 431-432, 445-446). The only other place Preston had been shot was in the leg; that wound was only "superficial" (433). Although Christopher had been shot three times, he survived (221-223).
Christopher stated that he had seen Baker around the neighborhood "once or twice," but did not know Baker's real name (226-227).
A few of weeks before the killing, Jerold had been involved in a fist-fight with Stanley Hinson ("Stanley"), who hung around with Defendant. The altercation had occurred in front of the Good Guy's Mini-Mart. While Jerold, Stanley, and another person were fighting, shots were fired. Jerold looked up and saw Petitioner across the street, firing a gun similar to the one he used on the day Preston and Christopher were shot (317-319, 376-377).
Testifying with regard to the June 1, 2001 incident, Jerold, Christopher, and Leroy all identified Petitioner as the shooter (216, 303, 371). Two other unrelated witnesses saw the shooting as they were stopped in their car at an intersection near the store. These witnesses stated that the shooter had passed directly in front of the car as he went to shoot at the group of young men in front of the mini-mart. The driver, Sandra Lester ("Lester"), was able to identify him (590).
Testifying to the present incident, Shannon Daszczyszak ("Daszczyszak"), who had gone with a friend to the house where Petitioner was known to stay (611-612), said that when she arrived, a man dressed in camouflage pants and a black hoody (475) answered the door. This man was holding a gun and proceeded to have conversation with her friend during which she (Daszczyszak) heard Preston's name mentioned (479). Michael Wood ("Wood"), who was housed at the jail with Baker testified that Baker had admitted the shooting to him (556-559).
Baker presented an alibi defense and a defense of false identification. In support of his alibi, Baker called several friends as witnesses to testify that he had been at a party across town at the time of the shooting (685, 702, 730, 757).
The jury returned a verdict acquitting Baker of intentional murder but convicting him of depraved indifference murder. The jury also convicted Baker of the assault charge.
Baker was sentenced as noted above. The Appellate Division affirmed his conviction on direct appeal. People v. Baker, 21 A.D.3d 1435, 801 N.Y.S.2d 684 (App. Div. 4th Dept. 2005), leave to appeal denied, 6 N.Y.3d 773, 844 N.E.2d 795, 811 N.Y.S.2d 340 (N.Y. 2006). Baker filed an application for a writ of error coram nobis challenging his the performance of his appellate counsel. This was summarily denied by the Appellate Division. People v. Baker, 41 A.D.3d 1323, 836 N.Y.S.2d 482 (App. Div. 4th Dept.), leave to appeal denied, 9 N.Y.3d 872, 874 N.E.2d 751, 842 N.Y.S.2d 784 (N.Y. 2007).
This timely habeas petition followed. For the reasons set forth below, the petition is denied.
III. Standard of Review under 28 U.S.C. § 2254(d)
When a petitioner "in custody pursuant to the judgment of a State court" seeks habeas review of "any claim that was adjudicated on the merits in State court," a habeas writ may issue only if the state court adjudication:
(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)(1), (2). A state court decision is "contrary to" federal law as determined by the Supreme Court if either (a) "the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law," or (b) "the state court considers facts that are materially indistinguishable from a relevant Supreme Court case and arrives at an opposite result." Williams v. Taylor, 529 U.S. 362, 405 (2000)). An "unreasonable application" of clearly established federal law occurs if (a) " 'the state court identifies the correct governing legal rules from the [Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case,' " or (b) the "state court invokes a Supreme Court case and unreasonably extends its legal principle to a new context where it should not apply, or fails to extend it where it should apply." Williams, 529 U.S. at 407.
IV. The Adequate and Independent State Ground Doctrine and Procedural Default
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (citations and internal quotations omitted). Even where the state court also considers a petitioner's arguments on the merits, that is of no moment because "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris, 489 U.S. at 264 n. 10; accord Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir.2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995).
V. Analysis of the Petition
A. Ground One: Insufficiency of the Evidence Supporting the Depraved Indifference Murder Conviction
Baker asserts that the only reasonable view of the evidence is that he intentionally killed Preston Mitchum, and he thus contends that the evidence is legally insufficient to support the conviction of depraved indifference murder. On direct appeal, the Appellate Division rejected this claim as unpreserved due to trial counsel's failure to make a specific, timely objection. People v. Baker, 21 A.D.3d at 1435 (citing People v. Gray, 86 N.Y.2d 10, 19 (N.Y. ...