The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Pending before this Court is petitioner Ameer Lawson's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner seeks relief from his February 24, 1998 conviction in the New York State Supreme Court, Queens County, for murder in the second degree under New York Penal Law ("N.Y.P.L.") § 125.25(2), and criminal possession of a weapon in the second degree under N.Y.P.L. § 265.03. (Am. Habeas Pet. (Doc. No. 23) at 2.) He was sentenced to concurrent terms of twenty-five years to life for the murder conviction, and seven-and-a-half years to fifteen years for the weapon conviction. (Id.) As grounds for his petition, Lawson asserts: (1) the trial court's ruling on the reverse-Batson challenge was erroneous; (2) ineffective assistance of appellate counsel for not arguing the evidence was insufficient to support a conviction of depraved indifference murder; (3) ineffective assistance of appellate counsel for not arguing ineffective assistance of trial counsel based on trial counsel's failure to preserve the insufficiency of the evidence claim; and (4) insufficient evidence to support a depraved indifference murder conviction. (Id. at 7--8.)
For the reasons set forth below, the petition is DENIED in its entirety.
I.New York State Criminal Proceedings
The jury selection process took place over the course of three days in January 1998. (See Tr. (Doc. No. 44) at 26--378.) In the first round of jury selection, defense counsel exercised two peremptory strikes against a Hispanic female and a white male. (Tr. 117.) In the second round, defense counsel exercised two peremptory strikes against a white male and a white female. (Tr. 179.) In the third round, after defense counsel exercised a peremptory strike against Mr. Cullado, a white male, the prosecutor raised a reverse-Batson challenge.*fn1 (Tr. 240.) However, defense counsel withdrew the peremptory strike before the prosecutor could state her reasons for making the challenge. (Tr. 240.) Defense counsel then exercised another peremptory strike in the third round against Mr. Vallejo, a white male. (Tr. 240.) In response, the prosecutor renewed the reverse-Batson challenge and alleged a pattern of racial discrimination, pointing out that defense counsel's first round peremptory strikes were against a "Hispanic Caucasian" and a "white male," and the second round peremptory strikes were against "a male white and . . . a female white." (Tr. 240--41.) The trial court held that the prosecutor had not established "any pattern here." (Tr. 241.)
Later in the third round, defense counsel exercised another peremptory strike against Ms. Dibernardo, a white female. (Tr. 243.) The prosecutor yet again renewed the reverse-Batson challenge, arguing that defense counsel's last two peremptory strikes were against white venire persons and that all of defense counsel's peremptory strikes up to that point were against white venire persons. (Tr. 243.) The trial court noted that the all seven peremptory strikes exercised by defense counsel were against white venire persons and that a pattern of discrimination had been established that required defense counsel to give a "race neutral reason" for using a peremptory strike against Ms. Dibernardo. (Tr. 243--44.) Defense counsel responded:
Your Honor, with respect to [Ms. Dibernardo], when I questioned her, although she didn't say anything specific to me in terms, including in terms of cause, otherwise I would have made a cause challenge, she seemed to me to be not able to look straight at me when I looked at her. She seemed to be more nervous than some of the other jurors were except for the ones who said they were nervous. She had some difficulty, although she later added to the question correctly with respect to the issue of reasonable doubt as to the People's burden of proof beyond a reasonable doubt and she hesitated on the question of whether or not I would have to prove my client's innocence or she would expect me to prove my client's innocent, although she answered the questions correctly. But there was a hesitancy that I saw with her on those issues that led me to challenge her. (Tr. 244--45.)
Ms. Dibernardo was asked three questions by defense counsel during voir dire. When asked if she would "keep the burden of proving the guilt in this case on the People beyond a reasonable doubt," Ms. Dibernardo unequivocally stated, "Yes." (Tr. 233.) When asked whether she would shift the burden to the defendant to prove his innocence, she answered "It would be up to you to prove it -- well, the prosecution I guess to prove that." (Id.) Finally, when asked what the People "would have to prove he's guilty beyond what," Ms. Dibernardo stated that the People had to prove defendant guilty beyond "a reasonable doubt." (Tr. 233--34.)
After the defense counsel proffered his reason for exercising the peremptory strike, the prosecutor responded that Ms. Dibernardo properly "indicate[d] that the burden of proof is on the people." (Tr. 245.) The trial court went on to describe that, contrary to defense counsel's explanation, it observed Ms. Dibernardo's facial, vocal, and body language, and that she did not "appear to be nervous at all." (Tr. 245--46.) Additionally, the court commented that Ms. Dibernardo made eye contact with the court and with "everyone" during voir dire, and found that Ms. Dibernardo had "answer[ed] all of the questions [during voir dire] in the right way." (Id.) Although defense counsel continued to assert that Ms. Dibernardo appeared "nervous and hesitant" as through she was "trying to give what appeared to be the correct answers," rather than what "she actually felt," the trial court ultimately concluded that not only did Ms. Dibernardo want to give the right answers, but that in fact she did give the right answers and granted the prosecutor's reverse-Batson challenge, sitting Ms. Dibernardo as juror number eight. (Tr. 246.)
A five day trial was held, and on February 24, 1998, petitioner was convicted by a jury of murder in the second degree under N.Y.P.L. § 125.25(2), and criminal possession of a weapon in the second degree N.Y.P.L. § 265.03. (Tr. 874--75.)
At trial, Christopher Rivera testified that he was standing outside the Queensbridge Housing Development at approximately 1:00 AM on November 26, 1995, when he was approached by petitioner and another individual known as "Flip." (Tr. 586--595.) He testified that these two individuals "walked a few feet past" him while he was "leaning up against the gate" and that they were "no more than three to four feet away." (Tr. 594.) Rivera also testified that he had seen Flip in the Queensbridge Housing area "once every three days . . . for about five months" and that he knew petitioner through a mutual friend. (Tr. 595--597.) Rivera then recounted that after petitioner and Flip had walked by, "Flip asked Marty come here, [and] Marty went over to him." (Tr. 599.) Then as "they was talking, [petitioner] said: You don't remember the conversation we had down the block[,] [a]nd [petitioner] pushed [Marty] back and [petitioner] pulled out [a gun] and shot [Marty]." (Tr. 599--600.) Specifically, Rivera saw, from "four feet" away, petitioner pull a ".45 . . . chrome" gun "from his waist" and Marty "tr[ying] to turn around and run and then [petitioner] shot and then [Marty] tried to run again" when petitioner shot him a second time. (Tr. 600--601.)
This testimony was corroborated by Lisa Velasquez, a passenger in her sister's car, who was "looking for someone on the street to do business with [i.e. buy drugs from]" when she "heard [multiple gun] shots" and observed petitioner "with his arm out" and saw "flashes . . . [come] [f]rom the end of his arm." (Tr. 506--509, 521--522.) Velasquez also testified that she was approximately "ten, fifteen feet away," the area was well lit, and she was not under the influence of narcotics at the time. (Tr. 507, 523.) Another witness, Erica Brown, testified that she heard multiple gunshots around 1:40 AM on November 26, 1995 and that when she went to investigate, she saw Rivera standing over Marty Gantt and observed that neither man had any weapons (Tr. 473--476.)
Once the police arrived, Rivera left the scene because he "was [ ] scared" and went to inform Marty Gantt's mother that her son had been shot. (Tr. 605.) Mrs. Gantt testified that "about close to two o'clock" in the morning on November 26, 1995, Rivera informed her that Marty Gantt "had been shot in his back." (Tr. 425.) Dr. Cary Reiber, a medical examiner, testified that Marty Gantt was shot twice, once in the "left lower back" and once to the "right side of the torso of the right flank," and that the "cause of death was a gunshot wound to abdomen with perforations of major vessels and bowel." (Tr. 414--420, 426.)
On the day of the murder, Rivera was taken to the police precinct where he gave the police a description of the shooter but did not identify the shooter because he "was scared and [ ] didn't want nothing to do with" the investigation. (Tr. 606.) Nevertheless, on December 11, 1995, after speaking with his mother who was "best friends" with Mrs. Gantt, Rivera went to the police and stated that petitioner was the shooter who committed the murder. (Tr. 608--609, 425-- 426.) On cross-examination, Rivera testified that while he was incarcerated on an unrelated arrest, he spoke to petitioner's aunt, Sherlah Carpenter, and told her that petitioner had nothing to do with the shooting. (Tr. 616.) Rivera also testified that he told petitioner's counsel, sometime in 1996, that Flip was the real shooter, that Flip was accompanied by an individual named "Nino" on the day of the murder, and that Flip had threatened Rivera with a gun to remain silent about the murder approximately two days after the shooting. (Tr. 618, 620--621.) However, Rivera maintained that he had lied to Ms. Carpenter and petitioner's counsel because petitioner was sitting nearby on both occasions and because he was scared based on earlier threats and an attempted slashing while he was incarcerated at Rikers Island. (Tr. 643--647.)
Petitioner argued an alibi defense and called only one witness, Derek Keyes. Keyes testified at trial that petitioner arrived at his apartment in Washington Heights at approximately 12:02 AM on November 26, 1995, and that petitioner "went into the back room" where the "other people that were [in Keyes'] apartment" while Keyes watched television in his bedroom. (Tr. 665--667, 670--671, 704.) Keyes further testified that petitioner slept over that night on a comforter in the living room and that between 5:00 AM and 6:00 AM, he saw petitioner sleeping on the floor. (Tr. 671--672, 706.)
II.Direct Appellate Proceedings
Petitioner, represented by counsel, filed his direct appeal papers on May 23, 2002, that "raised four issues: i) The Trial Court's ruling on the Kerns challenges was erroneous thereby violating the Appellant's right to a fair trial; ii) The numerous instances of prosecutorial misconduct violated the Appellant's right to a fair trial and due process of law; iii) The prosecution's bolstering of the witness' testimony violated the appellant's right to a fair trial; and iv) The Trial Court deprived Appellant of his right to a fair trial by allowing the prosecution to present rebuttal evidence on collateral matters." (Doc. No. 25 at 11; see also Doc. No. 45-1.) The government filed its opposition papers on July 22, 2002. (Doc. No. 45-1.) On December 2, 2002, the Appellate Division issued its opinion affirming petitioner's conviction. In substance, the Appellate Division held that "the trial court's ruling was proper" where the "People established a prima facie case of discrimination based on the defense counsel's pattern of using peremptory challenges against white jurors," the defense counsel failed to "provide a non-pretextual, racially-neutral explanation for his challenge . . . as to the subject juror," and the court found "that the reason given for the challenge was pretextual." People v. Lawson, 300 A.D.2d 319, 319 (2d Dep't 2002). The Appellate Division also determined that petitioner's "remaining contentions are either unpreserved for appellate review or without merit." Id.
On July 17, 2003, petitioner, through counsel, sought leave to appeal the affirmance of his conviction. The government opposed petitioner's application for leave on August 22, 2003, and the Court of Appeals denied leave to appeal on August 25, 2003. People v. Lawson, 100 N.Y.2d 595 (2003).
Petitioner, pro se, applied for a writ of error coram nobis on January 12, 2005, to vacate, on the ground of ineffective assistance of appellate counsel, the affirmation of his conviction by the Appellate Division. (See Doc. No. 45.) In his papers, petitioner contended that appellate counsel failed "to raise the viable issue that there was insufficient evidence to support [petitioner]'s conviction of depraved indifference murder, which was preserved for appellate review, depriv[ing] him of effective assistance of counsel on his direct appeal," and that there was "insufficient evidence to support [petitioner]'s conviction of depraved indifference murder; had appellate counsel raised this issue [the Appellate] Court would have reversed [petitioner]'s conviction." (Doc. No. 45 at 11.)
The government opposed the application for a writ of error coram nobis and in its papers, dated March 11, 2005, argued that appellate counsel had provided effective assistance and that the appellate court was "not empowered to hear [petitioner]'s second point, which seeks review on the merits of his underlying claim of error in the conviction for depraved-indifference murder." (Doc. No. 45 at 54.) In support of the government's opposition, petitioner's appellate counsel affirmed that "the status of the law was such that the issue raised by [petitioner] in his error corum [sic] nobis motion was not viable . . . [and that he] did not recognize the issue in May 2002." (Doc. No. 45 at 59--60.) Appellate counsel also submitted approximately ten exhibits detailing his correspondence with petitioner regarding the appellate brief. (See Doc. No. 45 at 61--83.)
In response, petitioner not only submitted his reply papers on April 8, 2005, he also subsequently submitted, on June 24, 2005, a "Supplemental Memorandum of Law" raising a "claim that appellate counsel was ineffective for failing to raise a claim of ineffective assistance of trial counsel due to trial counsel's failure to specify his theory for his motion for a trial order of dismissal of the depraved indifference murder charge." (Doc. No. 45 at 101.) The government submitted a letter brief in response to petitioner's supplemental memorandum of law on August 10, 2005, and petitioner replied to the government's response on August 17, 2005, and on August 21, 2005. (See Doc. No. 45 at 113--17.)
On March 7, 2006, the Appellate Division denied petitioner's request for a writ of error coram nobis and held that "appellate had failed to establish that he was denied the effective assistance of appellate counsel." People v. Lawson, 27 A.D.3d 485 (2d Dep't 2006). The Court of Appeals denied petitioner's request for leave to appeal on June 2, 2006. People v. Lawson, 7 N.Y.3d 758 (2006).
On June 3, 2004, petitioner filed his petition for writ of habeas corpus in this Court.*fn2
(Doc. No. 1.) After respondent filed its opposition to the petition for a writ of habeas corpus, petitioner sought to stay his petition pending state court proceedings in which petitioner intended to challenge his conviction based on a change in New York's law regarding depraved indifference murder. (See Doc. No. 13.) On December 14, 2004, the Honorable Nina Gershon granted petitioner's request to hold the habeas petition in abeyance pending resolution of his state court proceedings. (Doc. No. 14.)
Two years later, on June 23, 2006, petitioner informed the court that he had "exhausted 3 issues in a writ of Error Coram Nobis to the Appellate Division Second Department" and sought to amend his habeas petition. (Doc. No. 17 at 1--3.) Respondent filed its opposition to petitioner's amended habeas petition (see Doc. Nos. 19--21) and petitioner filed a traverse and memorandum of law in reply. (Doc. No. 25.)
Thereafter, on September 25, 2008, petitioner once again moved this Court to stay and hold in abeyance his petition for habeas corpus relief to allow him to exhaust "some issues of insufficiency of evidence with respect to Depraved Indifference Murder." (Doc. No. 28.) Respondent opposed petitioner's request for a stay (see Doc. Nos. 29--31), and petitioner replied. (Doc. No. 32.) This Court ordered petitioner to establish "good cause" why a stay is warranted and demonstrate that his unexhausted claim was not plainly meritless. (Doc. No. 33.) Having failed to comply this Court dismissed petitioner's application for a stay without prejudice and with leave to renew upon a proper showing. Petitioner then filed an affirmation in support of his application for a stay on January 3, 2011. The Court, finding that petitioner's affirmation neither demonstrated good cause nor showed the potential merit of any unexhausted claims, denied petitioner's request to stay his petition for habeas corpus relief. (Doc. No. 39.)
On March 14, 2011, petitioner submitted a letter brief and a supplemental memorandum of law "to clarify and strengthen my argument with [petitioner's] pending Amended Writ of Habeas Corpus." (Doc. No. 41.) In his letter brief, petitioner cites principally to three additional cases that he wishes this Court to consider -- People v. Baptiste, 51 A.D.3d 184 (3d Dep't 2008), Policano v. Herbert, 7 N.Y.3d 588 (2006), and Soto v. Conway, 565 F. Supp. 2d 429 (E.D.N.Y. 2008). In his corresponding "supplemental memorandum of law," petitioner attempts to distinguish the facts of his case from that of People v. Register, 60 N.Y.2d 270 (1983) to argue that the depraved indifference murder charge should not have been submitted to the jury because the evidence does not support that charge, and that appellate counsel was ineffective for "bypass[ing] a properly preserved issue, such as a insufficiency of evidence/submission of depraved indifference murder, when there was no evidence of recklessness nor factual settings . . . to support conviction." (Doc. No. 42 at 11.) The case law petitioner cites and his arguments have been considered by this Court in this Memorandum and Order. *fn3
Finally, on August 10, 2012, petitioner submitted a letter further elaborating his reverse-Batson claim and requesting that the Court "allow [petitioner] the opportunity to an [sic] evidentiary hearin [sic] because ...