The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
USDC SDNY DOCUMENT ELECTRONICALLY FILED
Petitioner Gary Hall ("Hall"), pro se, seeks habeas corpus relief from his March 23, 2004 conviction, for of second degree murder (depraved indifference). While an inmate at Sing Sing Correctional Facility in Ossining, Hall stabbed another inmate in the neck with a homemade knife, or "shank," causing the inmate to bleed to death. Hall was tried before a jury in New York Supreme Court, Westchester County, and thereafter sentenced to twenty-five years to life. On September 27, 2007, Hall filed a federal habeas petition, pursuant to 28 U.S.C. § 2254, in which he alleges four grounds for relief: (1) the evidence was legally insufficient to support a conviction of depraved indifference murder; (2) the verdict was against the weight of the evidence; (3) ineffective assistance of counsel; and (4) defective grand jury proceedings. (See Petition, Sept. 27, 2007 ("Pet."), Dkt. 1, at 7-8.)
On October 24, 2007, former District Judge Stephen G. Robinson referred this case to Magistrate Judge Lisa Smith. On April 29, 2011, Magistrate Judge Smith issued a Report and Recommendation ("R&R"), recommending denial of the Petition. (Dkt. 14.) Hall filed objections to the R&R on June 29, 2011. (Dkt. 16.) Hall also submitted a letter to the Court, dated June 13, 2011, requesting a stay of these proceedings because he is "currently in the process of filing a motion pursuant to New York Criminal Procedure Law Section 440.10 ("440.10 motion") with the original trial court."*fn1 Hall did not indicate what issues he intends to raise in his 440.10 motion, nor did he explain his failure to exhaust this state remedy. Respondent has not opposed the requested stay.
The Court has reviewed the R&R and Hall's objections. For the reasons that follow, the Court denies Hall's request for a stay and adopts Magistrate Judge Smith's Report and Recommendation in its entirety. Hall's petition is, therefore, denied.
On September 7, 2002, Hall stabbed Robert Brown, a fellow inmate at Sing Sing Correctional Facility, during an altercation between them. Hall used a sharp object, or "shank," to cut Brown's jugular vein and carotid artery. Brown bled to death. Hall ran away, depositing his bloody sweatshirt in a garbage can. A corrections officer later observed blood on Hall's pants and placed him in handcuffs. The murder weapon and Hall's bloody sweatshirt were both recovered, and subsequent test results revealed that the blood found on those objects matched the victim's. There was no doubt that Hall stabbed Brown. Hall claimed on direct examination that he acted in self defense, but on cross he testified that the stabbing was accidental when he tried to disarm the victim.
On April 8, 2003, a Westchester grand jury indicted Hall for two counts of second degree murder (intentional and depraved indifference) and one count of first degree manslaughter. Hall proceeded to trial before a jury on January 22, 2004. The jury convicted Hall of one count of second degree murder (depraved indifference). On March 23, 2004, the trial court sentenced Hall to an indeterminate term of imprisonment of 25 years to life.
Hall appealed to the Second Department, arguing that: (1) the evidence was legally insufficient to establish depraved indifference murder; (2) his conviction was against the weight of the evidence; (3) counsel provided ineffective assistance; and (4) the district attorney failed to instruct the grand jury on the law with respect to depraved indifference murder. On September 12, 2006, the Appellate Division affirmed Hall's conviction. See People v. Hall, 820 N.Y.S.2d 526 (N.Y. App. Div. 2d Dep't 2006). The court found that Hall failed to preserve his claim of insufficient evidence to prove depraved indifference murder because Hall's motions to dismiss during and after trial were "not 'specifically directed' to the depraved indifference charge." Id. The court concluded that "[s]ince the defendant's guilt was proven beyond a reasonable doubt at trial, there can be no appellate review of the issue of whether a prima facie case had been presented to the grand jury." Id.
On October 5, 2006, Hall sought leave to appeal to the New York Court of Appeals, but not on all issues raised before the Appellate Division. Instead, Hall raised only two issues: (1) whether the issue of the legal sufficiency of the evidence was preserved at trial, and (2) whether the evidence at trial was legally insufficient to establish guilt of depraved indifference murder. On November 16, 2006, the New York Court of Appeals denied leave to appeal. Hall did not seek reconsideration of the denial of leave.
On September 27, 2007, Hall filed his federal habeas corpus petition, and attached the table of contents from his brief to the Appellate Division. The Court assumes that Hall seeks habeas review of those same arguments articulated on direct appeal.
III.Magistrate Judge Smith's R&R
On, April 29, 2011, Magistrate Judge Smith issued her Report and Recommendation that this Court deny Hall's petition. Magistrate Judge Smith addressed each of Hall's claims and found that they were each procedurally barred. With respect to Hall's ineffective assistance of counsel ...