The opinion of the court was delivered by: Calabresi, Circuit Judge:
Argued: February 17, 2012
Before: JACOBS, Chief Judge, CALABRESI and POOLER, Circuit Judges.
Omar Gutierrez appeals from the denial of a petition for a writ of habeas corpus in 27 which he argued that the evidence at trial was insufficient to support his conviction for 28 depraved indifference murder under New York law. The district court (Feuerstein, J.), of the 29 Eastern District of New York denied the petition as procedurally barred. On review, we find 30 that Gutierrez's claim was preserved for habeas review, but we hold that Gutierrez's legal 31 insufficiency claim fails on the merits. For this reason, we AFFIRM the judgment of the 32 district court.
During a bar brawl, Petitioner-Appellant Omar Gutierrez fatally stabbed John 3 Villaplana in the chest. Gutierrez was convicted of depraved indifference murder under 4 New York Penal Law § 125.25(2), and sentenced to twenty-five years to life in prison. After 5 the Appellate Division affirmed Gutierrez's conviction and his application for leave to 6 appeal to the New York Court of Appeals was denied, Gutierrez filed a timely petition for a 7 writ of habeas corpus in the United States District Court for the Eastern District of New 8 York. In his petition, Gutierrez argued, inter alia, that the evidence introduced at trial was 9 legally insufficient to support his conviction. The district court (Feuerstein, J.), relying on 10 the state court's finding that counsel failed to make a contemporaneous objection at trial to 11 the legal sufficiency of the evidence, dismissed the petition as procedurally barred.
12 Although the claim was barred under state law, we believe that it is nonetheless 13 cognizable on habeas review. Because there was a fundamental shift in New York's 14 interpretation of its depraved indifference murder statute between the time of Gutierrez's 15 trial in 2001 and the time his conviction became final in 2005, the legal basis for a 16 sufficiency challenge was not reasonably available to counsel at the time of trial. We 17 conclude, therefore, that this doctrinal shift constitutes an appropriate "cause" for the failure 18 to object, and we therefore reach the merits of Petitioner's claim. 19 Our review of the merits raises a troubled issue of New York law: just how much of 20 what kind of evidence supports depraved indifference convictions in New York. 21 Nevertheless, for reasons we will explain in Section II.C of this opinion we believe that 22 certification is not appropriate in this case and, based on the limited New York precedents 23 available to us, we hold that a reasonable jury could have found that the evidence at trial did 2 1 establish the necessary elements of depraved indifference murder. We therefore AFFIRM 2 the judgment of the district court.
A. Factual Background and Procedural History
On June 13, 1999, Petitioner Omar Gutierrez was involved in a bar brawl in 6 Montauk, Long Island. Gutierrez was at Rick's Crabby Cowboy Cafe ("Rick's") when a 7 fight broke out between different groups of patrons. The fight escalated and later continued 8 in Rick's parking lot where Gutierrez produced his knife and threatened a group of men. In 9 his written confession, Gutierrez described how he "accidentally stabbed someone" who ran 10 into his knife. This victim, Narcisso Luis Villaplana, survived his injuries, but he could 11 provide no direct testimony at trial about the stabbing. 12 Gutierrez and three others then pursued John Villaplana to a nearby driveway.
13 There, Gutierrez fatally stabbed John in the chest, producing two wound tracks. According 14 to trial testimony, Gutierrez fled the scene when a car approached, while John Villaplana 15 was still standing. Though John Villaplana also sustained an injury as a result of striking his 16 head on the ground, autopsy results confirmed that a stab wound caused his death. 17 Gutierrez was charged with: (a) murder in the second degree in violation of New 18 York Penal Law § 125.25(1) (intentional murder) and New York Penal Law § 125.25(2) 19 (depraved indifference murder) in connection with John Villaplana's fatal stabbing, and 20 (b) assault in the third degree in violation of New York Penal Law § 120.00(2) in connection 21 with Narcisso Luis Villaplana's stabbing. At trial, Gutierrez's counsel moved to dismiss the 22 depraved indifference murder charge on the ground that, "as a matter of law, . . . there [was] 23 insufficient evidence to prove a prima facie case." The trial judge denied the motion, and 1 the jury convicted Gutierrez of depraved indifference murder and assault in the third degree, 2 but acquitted him of intentional murder. Gutierrez was sentenced to an indeterminate term 3 of imprisonment of twenty-five years to life on the depraved indifference conviction and to a 4 concurrent determinate term of imprisonment of one year on the assault conviction.
5 On direct appeal, Petitioner argued, inter alia, that there was insufficient evidence to 6 support a depraved indifference murder conviction and that New York Penal Law 7 § 125.25(2) was unconstitutionally vague. On February 14, 2005, the Appellate Division 8 affirmed Gutierrez's conviction and sentence, concluding that his legal insufficiency claim 9 was "unpreserved for appellate review," that his conviction for depraved indifference 10 murder was "not against the weight of the evidence," and that some of Gutierrez's other 11 contentions were "either . . . unpreserved for appellate review or without merit." People v. 12 Gutierrez, 790 N.Y.S.2d 493, 494 (2d Dep't 2005). On June 14, 2005, Judge Smith, of the 13 New York Court of Appeals, denied Gutierrez's application for leave to appeal to that 14 court. See People v. Gutierrez, 5 N.Y.3d 763 (2005).
15 On September 12, 2006, pursuant to New York Criminal Procedure Law § 440.10, 16 Gutierrez filed a motion to vacate his conviction. After the trial court denied the motion, see 17 People v. Gutierrez, 836 N.Y.S.2d 488 (Suffolk Cnty. Ct. 2007) (unpublished table decision), 18 and the Appellate Division affirmed, see People v. Gutierrez, 871 N.Y.S.2d 2d 325 (2d Dep't 19 2008), Judge Smith, of the New York Court of Appeals, again denied Gutierrez's 20 application for leave to appeal to that court, see People v. Gutierrez, 12 N.Y.3d 816 (2009). 21 On September 12, 2006, Gutierrez also filed a petition for a writ of habeas corpus 22 with the federal district court of the Eastern District of New York pursuant to 28 U.S.C. 23 § 2254. The district court initially stayed the proceedings to permit Gutierrez to pursue his 1 section 440.10 motion, after which Gutierrez filed an amended petition, arguing: (1) that the 2 evidence presented at trial was legally insufficient to support his conviction for depraved 3 indifference murder; (2) that his trial counsel was ineffective because he failed to make a 4 specific objection to the legal insufficiency of the evidence at trial; and (3) that New York 5 Penal Law § 125.25(2) was unconstitutionally vague. See Gutierrez v. Smith, No. 06-CV-4939, 6 2010 U.S. Dist. LEXIS 102137, at *8 (E.D.N.Y. Sept. 27, 2010). In September 2010, the 7 district court denied Gutierrez's petition and declined to issue a certificate of appealability. 8 See id. at *30-*31. On March 16, 2011, we granted Gutierrez's motion for a certificate of 9 appealability "with respect to [Gutierrez's] claim that the evidence was legally insufficient to 10 support his conviction for depraved indifference murder in violation of New York Penal 11 Law § 125.25(2)."
B. The Evolution of "Depraved Indifference" Law in New York
"Depraved indifference" murder is a type of second degree murder in New York. 14 Specifically, New York Penal Law § 125.25(2) provides that a person is guilty of murder in 15 the second degree when "[u]nder circumstances evincing a depraved indifference to human 16 life, he recklessly engages in conduct which creates a grave risk of death to another person, 17 and thereby causes the death of another person."
18 At the time of Gutierrez's trial in 2001, the law on depraved indifference murder was 19 governed by People v. Register, 60 N.Y.2d 270 (1983). In Register, the defendant entered a 20 crowded bar with a loaded gun. Id. at 273. After entering the bar and threatening to "kill 21 somebody," id. at 275, he ultimately killed one man and seriously injured two others, id. at 22 273-74. In upholding the trial court's refusal to instruct the jury that the defendant's 23 intoxication could negate a showing of depraved indifference, the Court noted that "the 1 focus of the offense is not upon the subjective intent of the defendant, as it is with 2 intentional murder, but rather upon an objective assessment of the degree of risk presented 3 by defendant's reckless conduct." Id. at 277 (citations omitted).
4 In the years after Gutierrez's trial but before his conviction became final in 2005,*fn1 5 New York moved away from Register's holding. During this period, new case law suggested 6 that conviction for depraved indifference murder did require proof of a mental state of 7 recklessness. Accordingly, strong proof of the defendant's intent to murder the victim would 8 be inconsistent with a conviction for depraved indifference murder. The New York Court of 9 Appeals, in order to clarify when the facts of a case would tend to evince intentional as 10 opposed to reckless murder, also began to define more narrowly the circumstances in which 11 a depraved indifference charge would be appropriate. See Policano v. Herbert, 7 N.Y.3d 588, 12 595 (2006).
13 According to the Court of Appeals, the law as articulated in Register "remained 14 static" until its decision in People v. Sanchez, 98 N.Y.2d 373 (2002). Policano v. Herbert, 7 15 N.Y.3d 588, 595 (2006). Critically, Sanchez was decided in 2002, after Gutierrez's trial and 16 conviction, but, as we have noted, before that conviction became final. In Sanchez, a 4-3 17 decision, the Court of Appeals rejected the defendant's argument that his conduct "was 18 consistent only with an intentional killing" and therefore could not sustain a conviction for 19 depraved indifference murder. 98 N.Y.2d at 376. The Court thus reaffirmed Register, 20 reiterating that "the requirement of circumstances evincing a depraved indifference to 21 human life under [New York] Penal Law § 125.25 (2) murder focuses not on ...