The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:
Pro se petitioner Jose Melendez ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 29, 2005, Petitioner was convicted after a jury trial in New York State Supreme Court, Kings County ("Kings County Supreme Court" or "trial court"), of two counts of second degree murder (N.Y. Penal Law § 125.25(3)) and one count of first degree arson (N.Y. Penal Law § 150.20(1)). On April 7, 2006, Petitioner was sentenced to concurrent terms of twenty-five years' to life imprisonment on both murder counts and the arson count.
Petitioner challenges his conviction on the grounds that: (i) he was deprived of a fair trial when the prosecutor elicited the grand jury testimony of prosecution witness Hector Gonzalez and the testimony of an arresting officer bolstering Gonzalez's identification of Petitioner at trial; (ii) Petitioner was deprived of his due process rights by the trial court when it failed to instruct the jury that a mere probability of guilt did not rise to the level of proof beyond a reasonable doubt; (iii) his trial counsel provided ineffective assistance; (iv) Petitioner's constitutional right to confront the witnesses testifying against him was violated; (v) the evidence against Petitioner was insufficient to prove his guilt beyond a reasonable doubt; and (vi) he is actually innocent. For the reasons set forth below, the petition is denied in its entirety.
Petitioner was indicted by a New York State grand jury in Kings County and charged with four counts of murder in the second degree in violation of N.Y. Penal Law §§ 125.25(2), (3), two counts of assault in the first degree in violation of N.Y. Penal Law. §§ 120.10(3), (4), and three counts of arson in the first degree in violation of N.Y. Penal Law § 150.1(1), for allegedly setting fire to a building at 407 Wilson Avenue in Brooklyn, New York ("407 Wilson"), on January 9, 2004. (Aff. of Rhea A. Grob, Dkt. Entry 21 ("Grob Aff."), ¶¶ 4-5.) The fire killed two people and seriously injured a third person. (Id.)
B. The Evidence Adduced at Trial
At the time of the fire, 407 Wilson was a three-story building, with apartments on the second and third floors. The Rodriguez family, which included Jasmine Rodriguez, her sisters, mother and son, lived in the second floor apartment. The Torres family, including Ruben Torres, Sr., his wife Milagros, and their adult son, Gilbert, lived on the third floor. (J. Torres: 238-40; R. Torres, Jr.: 253; Salgado: 276-77; Rodriguez: 624-25, 628.)*fn1
Jasmine Rodriguez and Petitioner met in March 2003 and became romantically involved. (Rodriguez: 625-27.) Petitioner, who had been living in an apartment with his friend Jose Ramos*fn2 and Ramos' family, moved into 407 Wilson to live with Rodriguez in October 2003.
(Rodriguez: 626-29.) In November 2003, Rodriguez and Petitioner broke up and Petitioner moved out of 407 Wilson and moved back into Ramos's apartment. (Ramos: 561; Rodriguez: 629.) Following the break up, Petitioner continued to visit Rodriguez at 407 Wilson, sometimes sleeping on a bench underneath the staircase on the ground floor. (Salgado: 297-98; Rodriguez: 629-30.)
At the end of November 2003, Rodriguez learned she was pregnant with Petitioner's child. (Rodriguez: 630.) Petitioner was happy about the pregnancy, but, for various reasons, Rodriguez decided to have an abortion. (Rodriguez: 630-32.) Rodriguez told Petitioner of her decision to have an abortion on December 16, 2003. (Rodriguez: 632.) Petitioner cried and begged her not to have the abortion. (Rodriguez: 632, 644-45.) A few days before Christmas 2003, Jose Salgado was visiting 407 Wilson and saw Petitioner in the hallway writing in Spanish on the wall: "Whatever you decide for me, may God give it to you twice." (Salgado: 282, 309.) Salgado asked Petitioner why he wrote that on the wall, and Petitioner said that it was meant for Rodriguez's mother. (Salgado: 283.) While the prosecution and defense stipulated Salgado had testified before the grand jury that Petitioner also said he was going to find another place to stay and leave the Rodriguez family alone, at trial, Salgado did not remember Petitioner saying that. (Stipulation: 294-96.)
A few days after Petitioner was seen writing on the wall in 407 Wilson, a mini-bike that Ruben Torres, Jr., kept in the hallway of 407 Wilson was stolen. (R. Torres, Jr.: 258-59.) Neither Ruben, Jr. nor Salgado knew who had stolen the mini-bike, but they wanted to question Petitioner about the theft and began to ask people if they knew where Petitioner was. (R. Torres, Jr.: 260-61; Salgado: 279-80.)
On January 1, 2004, Ramos went to 407 Wilson looking for Petitioner. (Ramos 561-62; Rodriguez 647.) Ruben, Jr. and Salgado saw Ramos and told him that they were looking for Petitioner in connection with the stolen mini-bike. (R. Torres: 262, 265-67.) According to Ruben, Jr. and Salgado, Ramos was "very disrespectful" to Salgado, and Salgado punched Ramos in the face. (R. Torres: 262, 267; Salgado: 281.) Ramos testified that several people in the building stopped him, demanded to know where Petitioner was, and started hitting him. (Ramos: 562, 575-76.) According to Ramos, one of them started to come towards Ramos with a hammer, threatening to break his teeth, when Ramos escaped and ran away. (Ramos: 562, 582.) A day or two later, Ramos saw Petitioner and told him that Ramos had been beaten because of Petitioner, and that Petitioner should fix the problem. (Ramos: 563.) Petitioner was drunk and upset, and told Ramos that he was going to burn the house. (Ramos: 563, 590.)
During the morning of January 8, 2004, without telling Petitioner, Rodriguez terminated her pregnancy. (Rodriguez: 633-34.) Shortly after midnight on January 9, 2004, Rodriguez and her family, as well as Rodriguez's friend Tylenea Washington and the father of Rodriguez's son, were inside the Rodriguez apartment when Washington heard a door slam and glass breaking downstairs, and smelled smoke. (Rodriguez: 634-35; Washington: 515-16, 518, 520.) Washington ran to the window, but did not see anyone. (Washington: 515, 519.) One of the Rodriguez sisters opened the apartment door and saw thick black smoke and flames. (Washington: 516, 519-20, 522; Rodriguez: 636-38.) Everybody in the Rodriguez apartment escaped to safety. (Washington: 516-17, 522-23; Rodriguez: 637.)
Hector Gonzalez, a man from the neighborhood who used to date Rodriguez and had a child with Washington, was standing on the corner outside 407 Wilson the night of the fire. (Gonzalez: 453-57.) Gonzalez testified that, from approximately 38 feet away, he saw Petitioner walk out of 407 Wilson and then run away, right before Gonzalez saw smoke and fire come out of the building. (Gonzalez: 453-58.) Gonzalez stated that Petitioner was wearing a black jacket and was not carrying anything. (Gonzalez: 455-58.)
Virgilio Hiciano also was outside of 407 Wilson the night of the fire waiting for a friend. (Hiciano: 692.) Hiciano testified that he saw Petitioner enter 407 Wilson and then, a few minutes later, exit the building. (Hiciano: 692-93.) Hiciano said that Petitioner was wearing a blue jacket and walked out of 407 Wilson. (Hiciano: 693-94.) He did not see anybody else go into or out of the building. (Hiciano: 714.) Hiciano then sat in his car for, at most, ten minutes, before going to a friend's house, and did not see any fire. (Hiciano: 695.) While he was at his friend's house, Hiciano received a telephone call from another friend telling him that 407 Wilson was on fire. (Hiciano: 695-96.) Hiciano estimated that he returned to 407 Wilson at around 12:30 or 1:00 a.m., and that he had been gone from there for about an hour or two. (Hiciano: 696.) On cross-examination, Hiciano testified that it was between 9:30 and 10:00 p.m. when he saw Petitioner enter and exit 407 Wilson. (Hiciano: 711.) On redirect examination, Hiciano conceded that it could have been after 10:00 p.m. when he saw Petitioner, because Hiciano was not paying attention to the time. (Hiciano: 713.)
The fire department arrived at about 12:38 a.m. and began fighting the fire. (Jorgensen: 493, 496-99; Mockler: 536-37.) With the exception of the basement area, the entire building was engulfed in flames. (Jorgensen: 508-09; Mockler: 537-39.) Lt. Jorgensen, who was part of the first unit who responded to the fire, testified that the fire was so hot that the metal railings in the interior staircase were cherry red and, for the temperature to be that hot, something had to have accelerated the flames. (Jorgensen: 508, 510-11.) The firefighters fought their way into the Torres family's apartment and found three unconscious people, later determined to be Gilbert, Ruben, Sr., and Milagros. (Jorgensen: 499-500.) Gilbert and Ruben, Sr. were taken to the hospital, but died days later. Milagros survived, though she suffered debilitating injuries. (J. Torres: 248-50; R. Torres, Jr.: 261; Salgado 284; Gilson: 746, 752.) Dr. Thomas Gilson of the Chief Medical Examiner's Office performed an autopsy on Gilbert's body and concluded that he died of complications from smoke inhalation. (Gilson: 733-47.) Dr. Gilson did not perform the autopsy of Ruben, Sr., but he reviewed the autopsy report, and concurred in the report's certified cause of death as complications from smoke inhalation. (Gilson: 747-48, 752.) The person who performed Ruben, Sr.'s autopsy did not appear at trial.
Later in the morning of January 9, 2004, Salgado received a telephone call from Petitioner, who asked if anybody had died in the fire and stated he hoped nobody had died. (Salgado: 285-86.) Sometime after the fire, Ramos saw Petitioner and asked him whether he had set the fire. (Ramos: 564-65, 596.) Petitioner told Ramos that he did set the fire. (Ramos: 564-65, 596.) Petitioner threatened Ramos and told him that, if he was walking, he could get hit by a car and be hurt and killed. (Ramos: 596.)
Gonzalez testified that, on February 3, 2004, he went to a police precinct, and was shown a lineup of people. (Gonzalez: 460.) Gonzalez testified that he picked Petitioner out of the lineup as the person he saw leaving 407 Wilson shortly before he saw the fire. (Gonzalez: 460-61.) Gonzalez said he previously had seen Petitioner in the company of Rodriguez more than once. (Gonzalez: 463-64.) On cross-examination, defense counsel asked Gonzalez whether it was true that he never saw Petitioner's face the night of the fire, and Gonzalez responded, "I seen his face, but it was too dark where I was at and turned his back. . . . I seen his face." (Gonzalez: 464.) Petitioner's counsel then presented Gonzalez the following excerpt from his grand jury testimony:
Question: Can you describe the person who came out?
Answer: I ain't seen his face. Only thing I see was black, a jacket. He came out of the building and he was in a rush and he turned.
Question: Okay, and when he turned, you saw the -- who it was?
Question: Did you recognize the person?
Answer: No, it was night. I can't see that much that far away. All I could see.
Question: You didn't see the person's face?
Answer: In the paper, that's it. (Gonzalez 466.) Gonzalez also affirmed on cross-examination that "the only reason [Gonzalez] picked [Petitioner] out of the lineup, is that [Petitioner] was wearing the same black jacket." (Gonzalez 467.)
On redirect examination, over Petitioner's objection, the prosecution read another excerpt from Gonzalez's grand jury testimony where Gonzalez testified that he did recognize the face of the person he saw leaving 407 Wilson, and then again testified that the person Gonzalez saw leaving the building was Petitioner. (Gonzalez 470-71.) In addition, a picture of the lineup from which Gonzalez identified Petitioner was entered into evidence, and Petitioner was not wearing a black jacket in that picture. (Gonzalez 471-73.)
On recross-examination, Gonzalez testified that he was shown the black jacket separately, after he picked Petitioner out of the lineup, and told the police that it was the same black jacket Petitioner was wearing when Gonzalez saw him leaving 407 Wilson. (Gonzalez 474.) Petitioner's counsel then read the following excerpt from Gonzalez's grand jury testimony:
Question: Well, did you see him in the early morning hours of January the 9th?
Answer: After he came out, not his face, no.
Question: Well how are you able to identify him in ...