The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER
The petitioner, Victor Brito, brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted after a jury trial in New York State Supreme Court, Bronx County, of two counts of murder in the second degree (N.Y. Penal Law § 125.25), and was sentenced to concurrent indeterminate terms of twenty-five years to life. The judgment was entered on June 20, 2002. The petitioner's conviction was affirmed on October 4, 2007, by the Appellate Division, First Department, and leave to appeal to the New York Court of Appeals was denied on December 27, 2007. People v. Brito, 843 N.Y.S.2d 43 (App. Div. 2007), appeal denied, 880 N.E.2d 878 (N.Y. 2007). The petitioner subsequently made a motion to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10. By order dated September 26, 2008, the trial court denied the motion. (Pimentel Decl. Ex. 6.)
The petitioner asserts the following six claims in his habeas corpus petition: (1) his conviction was against the weight of the evidence, (2) he was denied the right to a fair trial because the trial judge refused to give a specific jury charge regarding witness omissions, (3) he was denied the right to a fair trial because of prosecutorial misconduct, (4) he was entitled to a lesser charge of depraved indifference murder, (5) he was denied the right to effective assistance of counsel, and (6) eyewitness identification was inconsistent with testimony that was presented at trial.
There was sufficient evidence at trial for the jury to find the following facts.
On January 22, 1993, the petitioner began working as a drug dealer for his brother, Happy, at 55 Evelyn Place, Apartment 4A, in Bronx County. (Tr. 204:3-25.) The petitioner took over a position previously held by Johnny Concepcion, who had been fired that day for arriving to work late. (Tr. 204:12-23.) That night, the victims, Francis Ramirez and Steven Moses, entered Apartment 4A and attempted to rob the petitioner. (Tr. 205:14-207:23, 211:10-15.) In response, the petitioner shot the two men. (Tr. 207:24-25, 211:14-15.) Early the next morning, two other drug dealers that worked for Happy, Domingo Guillen and Jose Perez, visited Apartment 4A and saw the bodies of the two victims. (Tr. 213:19-25, 350:10-352:13.)
Two nights after the shooting, January 24, 1993, the petitioner, Happy, Mr. Guillen, and two other individuals named Leito and Bimbo proceeded to dispose of the victims' bodies. (Tr. 236:1-24.) Together, they drove to the Henry Hudson State Parkway and dropped off the victims' bodies. (Tr. 238:20-240:23.)
The next day, January 25, 1993, police officers discovered the bodies of Francis Ramirez and Steven Moses on the Henry Hudson Parkway. (Tr. 176:17-177:23.) The case went unsolved until 1999, when Detective Kevin Lauler of the Cold Case Squad was assigned to the case. (Tr. 436:25-437:4.) As part of his investigation, he interviewed Messrs. Concepcion, Guillen, and Perez. (Tr. 440:20-23, 443:6-14, 449:16-451:11.)
On August 16, 2000, a Grand Jury in Bronx County returned an indictment charging the petitioner with second degree murder and other offenses. A jury returned a verdict of guilty on two counts of murder in the second degree (N.Y. Penal Law § 125.25). On June 20, 2002, a judgment of conviction was entered. The petitioner was sentenced to concurrent indeterminate terms of twenty-five years to life.
The petitioner, represented by counsel, filed a timely direct appeal and also filed additional grounds for appeal in a pro se supplemental brief. The New York State Supreme Court, Appellate Division, First Department, affirmed the petitioner's conviction on October 4, 2007, rejecting all of the petitioner's claims. See Brito, 843 N.Y.S.2d at 44. The petitioner's application for leave to appeal to the New York State Court of Appeals was denied on December 27, 2007. See Brito, 880 N.E.2d at 878.
By pro se papers dated March 22, 2008, the petitioner moved before the New York State Supreme Court to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. The trial court dismissed all claims except the petitioner's ineffective assistance of counsel claim pursuant to New York Criminal Procedure Law § 440.10(a) and (c), finding that all of the petitioner's claims, except the ineffective assistance of counsel claim, were already decided or should have been raised on direct appeal. (See Pimentel Decl. Ex. 6 at 1-2.) The trial court also found the petitioner's ineffective assistance of counsel claim to be without merit. (See Pimentel Decl. Ex. 6 at 2-3.) Accordingly, the trial court denied the petitioner's motion to vacate his conviction by an order dated September 26, 2008. (See Pimentel Decl. Ex. 6.) This petition for a writ of habeas corpus followed.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief to a state prisoner on a claim that was adjudicated on the merits in state court only if it concludes that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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); see also Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006); Muir v. New York, No. 07 Civ. 7573, 2010 WL 2144250, at *3 (S.D.N.Y. May 26, 2010).
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 confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to" the Supreme Court's result. Williams v. Taylor, 529 U.S. 362, 405 (2000).
A state court decision involves "an unreasonable application of . . . clearly established Federal law" when the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case . . . ." Jones v. Walsh, No. 06 Civ. 225, 2007 WL 4563443, at *5 (S.D.N.Y. Dec. 27, 2007) (quoting Williams, 529 U.S. at 407-08). To meet that standard, "the state court decision [must] be more than incorrect or erroneous . . . [it] must be objectively unreasonable." Jones, 2007 WL 4563443, at *5 (quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). "[I]t is well established in [this] circuit that the objectively unreasonable standard of § 2254(d)(1) means that [a] petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief." Cotto v. Herbert, 331 F.3d 217, 248 (2d Cir. 2003) (internal quotation marks omitted); see also Muir, 2010 WL 2144250, at *4
Because the petitioner is proceeding pro se, his petition is "read liberally and should be interpreted 'to raise the strongest arguments that [it] suggest[s].'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); see also Muir, 2010 WL 2144250, at *4.
The petitioner's first claim alleges that his conviction was against the weight of the evidence. However, a "weight of the evidence" claim falls under state law and is not cognizable on habeas corpus. See Douglas v. Portuondo, 232 F. Supp. 2d 106, 116 (S.D.N.Y. 2002); Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001). This is distinguishable from a claim alleging that the evidence produced at trial was legally insufficient to support a conviction, which is a cognizable habeas corpus claim. See Jackson v. Virginia, 443 U.S. 307, 324 (1979). Because the petitioner is acting pro se, the Court will construe his petition liberally and interpret his first claim to be a challenge to his conviction on the basis of legally insufficient evidence.
A petitioner challenging the sufficiency of the evidence supporting a conviction must overcome a "very heavy burden." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995). A reviewing court must view "the evidence in the light most favorable to the prosecution," and may only grant habeas relief if the petitioner has shown that "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 319, 324; see also Hawkins v. West, 706 F.2d 437, 439 (2d Cir. 1983). A reviewing court must defer to the trial court in making "assessments of the weight of the evidence or the credibility of witnesses" and construe "all possible inferences that may be drawn from the evidence" in the prosecution's favor. Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996); see also Muir, 2010 WL 2144250, at *4.
In reviewing the legal sufficiency of the evidence of a state conviction, this Court looks first to state law to determine the elements of the crime. Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999). Under New York Penal Law, a person is guilty of murder in the second degree when "with intent to cause the death of another person, he causes the death of such person or of a third person." N.Y. Penal Law § 125.25.
Viewed in the light most favorable to the prosecution, the evidence produced at trial was sufficient for a rational trier of fact to find beyond a reasonable doubt that the petitioner shot and killed the victims with the intent to cause their deaths. At trial, Mssrs. Concepcion, Guillen, and Perez testified that the petitioner admitted to shooting the victims. (Tr. 132:13-25, 207:12-25, 356:4-6.) Mr. Guillen and Mr. Perez testified to seeing the victims' bodies in the apartment before the bodies were removed. (Tr. 213:19-25, 351:18-352:13.) Mr. Guillen further testified that he acted as a lookout while the petitioner dumped the bodies onto the side of the Henry Hudson Parkway. (Tr. 233:12-240:18.) By the Grand Jury testimony of Police Officer Nicholas Nafpliotis, which was admitted pursuant to a stipulation, the jury learned that the bodies of ...