The opinion of the court was delivered by: Denise Cote, District Judge:
On October 26, 2010, Cyril Smith filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Smith was convicted following a jury trial and sentenced principally to life imprisonment on December 14, 2007. For the following reasons, the petition is denied.
A superseding indictment, filed on August 23, 2006, charged Smith in nine counts with narcotics trafficking and committing three separate drug-related contract murders in the Bronx. Following a two-week trial, the jury acquitted Smith on May 30, 2007 on Count Four, which charged Smith with intentionally killing Jamal Kitt ("Kitt") while engaged in a drug trafficking crime. It convicted Smith on every other count.
The evidence at trial established that Smith was both a narcotics dealer and a "hit man" who murdered three Bronx drug dealers to assist their rivals in the drug business. Edgardo Colon ("Colon") solicited Smith to murder Kitt and Terrence Celestine ("Celestine"). Smith killed Kitt and Celestine three weeks apart in July 1998. Less than two years later, Smith killed Sanford Malone ("Malone") to aid Edwin Avilez ("Avilez") and his drug operation.
In broad strokes, Smith's decision to assist Colon by killing Kitt and Celestine unfolded as follows. In 1998, Smith was selling drugs, primarily outside of New York City. During the spring, Smith asked his friend Rafael Ramos ("Ramos") to inquire if Colon would supply Smith with drugs. Colon, who was Hispanic, refused because Smith was black. During the summer, however, Ramos and Smith learned that Colon wanted Kitt killed because he was infringing on Colon's drug spot. Smith and Ramos agreed to do it and located Kitt sitting near a woman and her young son on Chisholm Street. Smith and Ramos walked down the street toward Kitt, and when Ramos hesitated, Smith took the gun from Ramos and shot Kitt three times. As soon as the shooting started, the woman covered her son with her body. After the shooting ended, Smith gave the gun back to Ramos. When Ramos saw the woman looking at him, he "waved her off" with the gun and she and her son retreated into a building. The woman later identified the shooter as the "Spanish" guy and not his black companion. Ramos told Colon that Smith had shot Kitt and that Colon should give Smith drugs, but Colon did not do so at that time.
About a month later, Colon remarked to Ramos and Smith that Celestine, a crack dealer, had to go. When Smith said he would take care of it, Ramos protested that Colon had not paid Smith for killing Kitt. Colon assured Ramos that this time he would give Smith money and drugs. Smith then killed Celestine with the same gun he had used to kill Kitt. Colon gave Smith drugs as payment for the murder. After Smith sold the drugs out of town, he sent $1,000 to Ramos.
The third murder victim was Malone, whom Smith killed in February 2000. Malone was the leader of a drug organization known as the Hughes Boys. Rival drug dealer Avilez feared Malone and believed that Malone would eventually kill him. Avilez decided to kill Malone first and through Ramos asked Smith to do it. Smith walked with his girlfriend towards Malone as Malone and his lieutenants stood on Bathgate Avenue. Smith shot Malone seven times and injured two others, thrust the gun at his girlfriend, and ran away. Avilez gave $800 to Ramos, who gave it to Smith.
Smith took the stand at trial. The Government presented a brief rebuttal case.
Through its completion of a special verdict form, the jury found the defendant guilty as charged in Count One of conspiring to distribute 50 grams or more of crack cocaine, one kilogram or more of heroin, and five kilograms or more of cocaine during the period from 1998 through 2002, and of having participated in that conspiracy after September 1, 2000. It also found the defendant guilty of murdering Malone (Count Two) and Celestine (Count Six) while engaged in a narcotics offense, but acquitted Smith of that same charge in connection with the death of Kitt (Count Four).
The jury was charged that in order to convict Smith of the crime charged in Count Two -- the murder of Malone -- the Government had to prove inter alia that Smith murdered Malone while engaged in the narcotics conspiracy charged in Count One and that the murder related in some meaningful way to that narcotics conspiracy. As for Count Six, the jury was charged that the Government had to prove that while Smith was engaged in a conspiracy with Colon to distribute cocaine and crack, Smith murdered Celestine and that that murder related in some meaningful way to the narcotics conspiracy in which both Smith and Colon were engaged.
The jury found Smith guilty as well of having caused the death of all three murder victims through the use of a firearm: Malone (Count Three); Kitt (Count Five); and Celestine (Count Seven). The jury was charged that the Government had to prove inter alia that Smith was a participant in the relevant charged drug conspiracy, and that in the course of using or carrying a firearm during and in relation to that conspiracy caused the victim's death. The charge explained the issue of causation as follows:
A defendant's conduct causes the death of another individual if it had such an effect in producing that individual's death as to lead a reasonable person to regard the defendant's conduct as a cause of the death. The death of a person may have one or more than one cause. You need not find that a defendant shot the victim or that he committed the final, fatal act. The Government need only prove that the conduct of the defendant was a substantial factor in causing the victim's death. Another way of putting it is, would a reasonable person regard the defendant's conduct as a cause of the person's death?
Finally, the jury found Smith guilty of conspiring to distribute 50 grams or more of crack cocaine and of distributing crack cocaine in August 2005. Smith's petition does not challenge his convictions on Counts Eight and Nine, which stem from these 2005 events.
Under 28 U.S.C. § 2255, "a federal prisoner may move the sentencing court to vacate, set aside, or correct the sentence on the ground that such sentence was illegally imposed." Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009). Smith raises two challenges to his conviction. He asserts that his trial counsel provided ineffective assistance by failing to challenge 1) the sufficiency of the evidence on seven counts and 2) the admission of Rule 404(b) evidence through the testimony of his former girlfriend ...