LORNA G. SCHOFIELD, District Judge.
Petitioner Fatin Johnson ("Johnson") brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following trial of second-degree depraved-indifference murder and third-degree criminal possession of a weapon in New York State Supreme Court, New York County. This case was referred to the Honorable Michael H. Dolinger for a report and recommendation (the "Report"). The Report was filed on May 13, 2013, and recommends that the writ be denied. Johnson has objected to the Report. For the following reasons the Report is adopted, and the petition is denied.
The facts relevant to Johnson's petition are set out in the Report and summarized here. On July 28, 1998, on a street in upper Manhattan, Johnson argued with his brother, shot his brother in the back and fatally wounded him. (MJ 3). Johnson fled the jurisdiction and was apprehended in 2002. He was charged with two counts of second-degree murder - intentional and depraved-indifference murder - and second- and third-degree possession of a weapon.
Before trial, the court denied Johnson's application for any line-up to be a sequential, double-blind lineup (the potential perpetrators shown one at a time by a law-enforcement representative with no knowledge of the case). At the conventional lineup that occurred, two eyewitnesses identified Johnson as the shooter. (MJ 3).
Johnson's jury trial began in New York Supreme Court on April 14, 2004, with Justice Renee White presiding. The state presented two eyewitnesses who identified Johnson as the shooter both in court and in the line-up; Johnson's former girlfriend who recounted his admission to her of shooting his brother; evidence of Johnson's flight and other evidence. At the conclusion of the State's case, defense counsel unsuccessfully sought dismissal on the ground that the evidence was insufficient to identify Johnson as the shooter. In his defense, Johnson called one eyewitness, who was a 12-year-old boy at the time of the shooting, and Johnson himself testified that he had had no involvement in the shooting. At the conclusion of the presentation of the evidence, defense counsel again unsuccessfully moved to dismiss. This time, however, he argued that the State had failed to prove intent with regard to either murder charge. [No mention of Manslaughter at 576-577, would be by inference, see MJ 31] Johnson did not object to the jury charge for depraved-indifference murder.
On April 28, 2004, the jury convicted Johnson of depraved-indifference murder and third-degree weapon possession, and acquitted him of intentional murder and second degree weapon possession. Justice White sentenced Johnson to a term of 25 years to life on the murder conviction and a concurrent term of seven years on the weapon charge. (MJ 5-6)
Johnson appealed to the Appellate Division, First Department. His attorney argued that: (1) the trial court erred in denying his application for a sequential, double-blind lineup, (2) the evidence was insufficient to support a conviction for depraved-indifference murder, including that trial counsel's failure to preserve the sufficiency claim was ineffective assistance of counsel; and (3) the conviction had been against the weight of the evidence. (MJ 6). Johnson also filed a pro se brief arguing (1) the unreliability of the eye witness testimony, the inadequate weight of the evidence, (2) ineffective assistance of counsel relating to the grand jury and the questioning of witnesses at trial, and (3) other arguments not relevant here. (MJ 7).
The Appellate Division, by majority opinion, affirmed Johnson's conviction. People v. Johnson, 43 A.D.3d 288 (1st Dep't 2007) ("Johnson I"). It held that the evidence of Johnson's responsibility for the shooting was "overwhelming." Id. at 288. As to the depraved-indifference conviction, the panel first observed that Johnson concededly had not preserved his sufficiency argument and would not review it in the interest of justice. Id at 289-90. The panel alternatively addressed the merits of the sufficiency claim and held that the evidence was sufficient measured by the charge as given. Id. at 290. The panel declined to review the weight of the evidence argument (MJ 10-13, unclear why). The majority rejected Johnson's remaining arguments including the challenge to the lineup and ineffective assistance. Id. at 294. Two of the justices dissented regarding the sufficiency and weight of the evidence holdings of the majority. Id. at 294-97. (MJ 9-11).
The New York Court of Appeals granted leave to appeal on September 18, 2007. People v. Johnson, 10 N.Y.3d 875 (2008). Johnson argued that (1) the denial of his lineup application had been an abuse of discretion, and (2) the First Department had not properly assessed the weight of the evidence. The court affirmed as to the lineup decision and remanded to the Appellate Division to allow that court to assess the weight of the evidence in light of the elements of the crime as charged to the jury. (MJ 12-13). Neither the parties nor the Court of Appeals addressed the sufficiency of the evidence.
On remand to the Appellate Division, Johnson argued that the verdict was against the weight of the evidence measured by both a subjective and objective standard. A majority of the panel again affirmed the conviction and found that the verdict was not against the weight of the evidence as measured by an objective test of depraved-indifference, as charged to the jury. People v. Johnson, 67 A.D.3d 448 (1st Dept. 2009). (MJ 15)
Johnson again obtained leave to appeal to the Court of Appeals, which affirmed and held that the Appellate Division majority had properly assessed the weight of the evidence in light of the charge as given. (MJ 18-19)
Johnson filed the instant habeas petition as of April 22, 2011, and makes three arguments: (1) he was denied a fair trial because the trial judge denied his application for a sequential, double-blind lineup; (2) the evidence was insufficient to show that he was guilty of depraved-indifference murder rather than intentional murder, and did not show "uncommon brutality" as allegedly required; and (3) trial counsel's ...