The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner Travis Hayes ("Hayes"), pro se, seeks habeas corpus relief from his September 23, 2003 conviction for manslaughter in the first degree and criminal possession of a weapon in the second degree. During the early morning hours of December 21, 2002, Hayes shot and fatally wounded Usanda Thompson ("Usanda") after Hayes intervened in Usanda's "tussle" with one Albert Blamoville ("Blamoville"). Hayes was tried before a jury in New York County Court, Orange County, and thereafter sentenced as a violent felony offender to consecutive determinate terms of twenty-five years, and seven years. Hayes was also sentenced to consecutive five- and three-year periods of post-release supervision.
On June 3, 2009, Hayes filed a federal habeas petition, pursuant to 28 U.S.C. § 2254, in which he raises the same issues raised in his appeal of his state court conviction. On June 12, 2009, United States District Judge Stephen C. Robinson referred this case to Magistrate Judge George A. Yanthis. On June 15, 2012, Magistrate Judge Yanthis issued a Report and Recommendation ("R&R") recommending that the Court deny the petition in its entirety. Hayes filed timely objections to the R&R on July 2, 2012, which the Court received on July 9, 2012. (Dkt. 25.)
The Court has reviewed the R&R and Hayes' objections. For the reasons that follow, the Court adopts Magistrate Judge Yanthis' Report and Recommendation in its entirety. Hayes' petition is, therefore, denied.
On December 21, 2002, at approximately 3:30 a.m., Usanda, his brother Lakem Thompson ("Thompson"), and friends left Bricks Bar in Newburgh. The group traveled in Usanda's minivan and stopped at a store. Blamoville appeared and asked to speak with Usanda, who did not respond. After speaking with Hayes at the side of the store, Blamoville returned to the van and again asked to speak with Usanda.
After Usanda got out of the van, members of the group heard him say that Blamoville had a gun. Usanda, who was unarmed, grabbed Blamoville from behind and held him in a bear hug. Thompson, who was standing about seventeen feet away, testified that Blamoville appeared to be reaching for a gun at his waist, but that Usanda prevented Blamoville from reaching the weapon. Hayes then appeared and yelled for Usanda to get off Blamoville. Hayes reached for his own hand gun and struck Usanda on his head. Two witnesses testified that Hayes cocked the hammer of the gun after he removed it from his waistband. The gun fired after Hayes struck Usanda. Hayes then pointed the gun toward Usanda's body and fired again. Blamoville broke free and shot at Usanda as Usanda ran toward the van. Hayes also shot at Usanda and then fled the scene. Witnesses heard a total of three to four shots. Usanda was transported to Saint Luke's Hospital, where he died from a gunshot wound. Police recovered two .45 caliber shell casings from the scene and determined that they were fired from the same weapon. A "jacketed .38 caliber projectile" bullet was also recovered from Usanda's body. Police suspected that this bullet likely came from a revolver.
Hayes was arrested on March 6, 2003 and charged with two counts of murder in the second degree, manslaughter in the first degree, manslaughter in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree.
At trial, Thompson testified that about two weeks before the incident, Usanda told Hayes to pay for a broken windshield that Hayes had shot. During the same conversation, Hayes told Usanda to stay away from his girlfriend, Kadisha Sampson ("Sampson"), with whom Hayes had a child. Usanda was also dating Sampson, and he continued seeing her after this confrontation.
Hayes took the stand in his own defense. He denied that he was aware of Usanda's relationship with Sampson. On the night of December 21, 2002, Hayes testified that he saw Usanda and Blamoville "tussling." Hayes knew that Blamoville carried a gun "a lot." He approached in order to break up the fight, and as he neared, a gun fell onto the ground. Hayes saw Thompson moving toward the fallen gun, and Hayes grabbed it from the ground. Hayes told Usanda to get off Blamoville, and then hit Usanda on the head with the gun he had picked up. The gun fired. Hayes initially thought he had shot Usanda in the head. He testified that he pointed the gun at the van as it backed up and hit him. Hayes could not recall if the gun fired. Hayes also testified that ten days prior to the incident, he spoke with Jamad Willis ("Willis"). Willis stated that Usanda and his friends had attempted to kidnap him and that he was scared for his life.
On September 23, 2003, the jury convicted Hayes of manslaughter in the first degree and criminal possession of a weapon in the second degree.
On direct appeal, Hayes made four arguments: (1) the trial court erred in not permitting him to call a witness to testify about a prior incident involving Usanda; (2) the prosecution's evidence at trial was legally insufficient; (3) the verdict was against the weight of the evidence; and (4) the sentence was excessive. In a decision and order dated March 29, 2007, Hayes was granted leave to file a supplemental pro se brief. In his supplemental brief, Hayes raised two additional issues: (1) the trial court erred when it denied ...