The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Pending before this Court is Leonard Oliver's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Oliver challenges his conviction in the Supreme Court of the State of New York, Kings County, on two counts of assault in the first degree under New York Penal Law ("N.Y.P.L.") §§ 120.10(1) and (3), one count of gang assault in the second degree under N.Y.P.L. § 120.06, and one count of manslaughter in the second degree under N.Y.P.L. § 125.15(1). The trial court sentenced Oliver to concurrent terms of ten, five, and three-and-one-half years imprisonment for the intentional assault, reckless assault, and gang assault, respectively, and to a further consecutive term of five to fifteen years imprisonment for the manslaughter.
In his petition, Oliver asserts that he was denied his due process right to a fair trial when the trial court admitted testimony that petitioner and his co-defendant were affiliated with a gang.
For the reasons set forth below, the petition is DENIED.
I. Manslaughter and Assaults
On April 15, 2002, at approximately 8:00pm, Oliver, his friend K.C.*fn1 , and others stood in front of a store on the corner of Newkirk Avenue and Flatbush Avenue in Brooklyn, New York. (Trial Tr. 989:24-90:4.) Three men approached the group; one intentionally bumped Oliver as he entered the store, and then again as he left. (Trial Tr. 991:11-92:8.) Oliver responded, "Watch where the fuck you going." (Trial Tr. 992:9-10.) Roughly half an hour later, the same three men returned, and the same individual again bumped Oliver. (Trial Tr. 992:19-93:9.) Oliver and his companions confronted the men, and the man who bumped Oliver pulled out a gun and waved it at the crowd, which quickly dispersed. (Trial Tr. 994:1-95:10.) Shortly thereafter, Oliver, K.C., and Michael Williams convened in front of a building where they regularly hung out. Oliver, upset about the earlier incident, asked Williams to "pass me the toast," referring to a gun. (Trial Tr. 995:16-96:21.) Oliver and Williams entered the building, where Williams handed Oliver a chrome gun. (Trial Tr. 998:18-99:7.)
Oliver and K.C., without Williams, then walked towards K.C.'s home, and came across two individuals, E.W. and B.P., who were not involved in the original altercation. (Trial Tr. 611:1-12:25, 1001:15-1002:1.) B.P. had exchanged dirty looks with K.C. in the past. (Trial Tr. 999:19-1001:4.) An argument ensued before E.W. and B.P. walked away. (Trial Tr. 1002:13-04:20.) Oliver and K.C. then met up again with Williams, and the three walked back to where E.W. and B.P., now joined by several friends, stood. (Trial Tr. 1005:17-25.) A witness observed a gun protruding from Williams's pocket. (Trial Tr. 1094:15-20.) K.C. resumed arguing with B.P., and told Williams that he wanted to fight. Williams replied, "Do you, go ahead," (Trial Tr. 1007:4-22), or "Do what you got to do," (Trial Tr. 134:12). K.C. punched B.P. and he fell to the ground. (Trial Tr. 1008:2-11.) While K.C. was on top of B.P., K.C. heard three gunshots. (Trial Tr. 1008:20-24.) When K.C. got up, he saw Oliver wrestling with Everton King, who was not a party to the original argument. (Trial Tr. 1009:9-24.) K.C. saw a gun fall. (Trial Tr. 1010:7-8.) Williams grabbed the gun - - linked to Oliver in trial testimony - - off the ground, and all three ran. (Trial Tr. 1011:7-9.)
King testified at trial that he had seen Oliver pull a gun from his waistband and fire two shots toward B.P. (Trial Tr. 136:2-9.) He testified that he grabbed Oliver in an attempt to stop him from shooting again, and that Oliver shot him in the stomach during the struggle. (Trial Tr. 136:14-25.) E.W. also suffered a gunshot wound to the stomach, (Trial Tr. 622:6-16), and a bystander, Christopher Gentles, died from a bullet wound. (Trial Tr. 53:11-20.) B.P. suffered a broken jaw. (Trial Tr. 1242:9-1.)
Based on interviews conducted at the scene, police began looking for Oliver. (Trial Tr. 391:25-394:19.) Oliver was apprehended shortly after midnight on April 21, 2002. (Trial Tr. 396:16-20.) Later that afternoon, a detective read Oliver his Miranda rights, which Oliver waived. (Trial Tr. 414:5-8.) Oliver then provided a written statement describing the events leading up to the shooting and the shooting itself. (Trial Tr. 415:21-18:7.) Oliver's statement indicated that after K.C. punched B.P., B.P.'s friends "jumped" Oliver and his friends. (Trial Tr. 417:18-20.) Oliver's statement then said that he pulled out a gun to scare the men, but that another man was beating him and grabbing for the gun when it went off. (Trial Tr. 417:20-23.) The statement indicated that Oliver then heard more shots. (Trial Tr. 418:24.) Later that evening on the day of his arrest, Oliver provided a videotaped statement in which he acknowledged receiving a gun from Williams, and reiterated the same basic events as in his written statement. (Def.'s Videotaped Statement.)
E.W. and B.P. subsequently identified Oliver at a police lineup as having been present at the scene of the shooting. (Trial Tr. 429:9-32:18, 487:13-90:20.) Another witness, although unable to identify Oliver in a photo array, testified that after the fight he observed Williams retrieve a gun that Williams's "short" friend had tossed into the street. (Trial Tr. 1096:21-24.) Oliver was the shorter of Williams's two companions. (Trial Tr. 614:4-5.) Although that witness initially stated that he saw Williams shoot Gentles, at trial he conceded that he did not actually see any of the shots fired that night. (Trial Tr. 1115:5-16:24.)
II. Trial, Conviction, and Sentencing
Oliver and Williams were tried jointly, but before separate juries, in the Supreme Court of New York, Kings County. (Trial Tr. 2.) K.C. agreed to cooperate with the government in its case against Oliver and Williams. (Trial Tr. 987:12-17.) Prior to K.C. taking the stand, both Oliver and Williams sought to preclude him from testifying about the East Coast Mafia Crips, to which the government alleged Oliver, Williams, and K.C. belonged. (Trial Tr. 959:7-64:6.) The court denied these motions, finding the testimony relevant to "explain[ ] what happened and what the day was like and . . . what led to these three people going down the street and . . . two of them having guns." (Trial Tr. 962:24-63:6.)
At trial, K.C. testified that he, Oliver, and Williams were all members of the East Coast Mafia Crips, that Williams was their leader, that they used to hang out and hold meetings, that they hid guns under two trees, and that he had seen guns at their meeting location. (Trial Tr. 971:15-79:14.) Of 121 pages of transcript encompassing K.C.'s trial testimony, thirteen contain at least some discussion of the East Coast Mafia Crips. (Trial Tr. 965:18-1085:18 (including discussion of Crips at 971:18-78:7, 988:12-90:23, 1078:25-79:19).) Although the government had also sought in a pretrial motion to introduce testimony from an expert on gangs, the trial court held the motion in abeyance pending K.C.'s testimony, and the government ultimately never renewed it. (Pre Tr. Hr'g vol. A2, 45:5-14.)
The government made further reference to the Crips in its summation, though each time in the context of explaining the relationship between Oliver, Williams, and K.C., or addressing K.C.'s character. (Trial Tr. 1462:22-23, 1464:9-66:7, 1483:8-18, 1486:9-11, 1492:17-18, 1496:15-17.) During jury instructions, the court advised the jurors, "While you are [sic] heard testimony from [K.C.] that defendants are in fact members of a certain street gang that membership, if you believe it to be true, is not a crime, and should not be held against him, and has no role to play in your deliberations." (Trial Tr. 1625:5-9.)
The court instructed the jury on alternative counts of depraved indifference murder and manslaughter in the second degree; attempted murder in the second degree; two counts of assault in the first degree; gang assault in the second degree*fn2 ; and, criminal possession of a weapon in the second degree. (Trial Tr. 1601:09-04:17, 1616:10-28:09.) On February 27, 2003, the jury found Oliver guilty of manslaughter in the second degree, assault in the first degree (two ...