OPINION & ORDER
PAUL A. CROTTY, District Judge.
On December 2, 2002, Petitioner Cesar Lopez was convicted of murder in the second degree after a jury trial, conducted in New York State Supreme Court, Bronx County. He was sentenced to a term of 20 years to life.
Lopez stabbed his common law wife, Nilda Torres, eleven times after she had threatened to kill him. Ms. Torres was an alcoholic, who had been drinking for three days at the time of the incident. An autopsy revealed that she had.37 grams of alcohol in her blood (four times the legal limit), and that she also had cocaine in her blood, brain, and urine.
Lopez retained Manuel Ortega to represent him at trial. At trial, Lopez argued that the killing was justified, forcing the People to prove beyond a reasonable doubt that the killing was not in self defense. On appeal, Lopez's new lawyer argued that Lopez was denied the effective assistance of counsel for two reasons: (1) Ortega failed to adequately defend Lopez because he did not use the defense of extreme emotional disturbance ("EED") at the time he murdered his common law wife; and (2) Ortega failed to object to the Judge's charge on the justification defense.
The Appellate Division rejected the arguments and affirmed the conviction. After collateral proceedings pursuant to CPL § 440, Lopez commenced this habeas corpus proceeding. On February 25, 2009, this Court referred the § 2254 Petition to Magistrate Judge Andrew J. Peck. He conducted a hearing, and on April 21, 2010, Magistrate Judge Peck issued his Report and Recommendation ("R&R"). He found that Lopez was denied the effective assistance of counsel in violation of the Sixth Amendment right to counsel by Ortega's failure to raise the affirmative defense of EED. Accordingly, he recommended that the Court grant the Petition and order the State to retry Lopez or resentence him for manslaughter. (R&R 76). The apparent basis for the direction to resentence Lopez for manslaughter is the assumption that had the affirmative defense of EED been pursued, it would have been successful, resulting in a manslaughter conviction. Magistrate Judge Peck recommended that the Court deny Lopez's second claim of ineffective assistance of counsel concerning the State Court judge's charge on justification. Id . at 75. The People filed objections to the R&R on June 22, 2010. Lopez filed a response on July 23, 2010, and the People filed a reply on August 5, 2010. The Court has reviewed the R&R and the parties' submissions. For the reasons that follow, the Court denies habeas relief based on ineffective assistance of counsel.
On February 15, 2002, at approximately 10:25 p.m., Lopez killed his long-time common law wife, Nilda Torres ("Torres") in their Bronx apartment by stabbing her eleven times. Thereafter, Lopez went to his neighbor's apartment, and asked them to call the police because his phone was broken. Lopez returned to his apartment, but left his door open so the police could enter peacefully. Lopez received his Miranda warnings; waived them; and when asked "What happened tonight?" confessed to the police. Later the same evening Lopez confessed again a videotaped interview with the Bronx District Attorney. On March 8, 2002, a Bronx grand jury indicted Lopez on two counts of second degree murder (intentional murder and depraved indifference murder).
A. Trial in New York Supreme Court, Bronx County
1. The Prosecution's Case
At trial, the prosecutor's case consisted primarily of Lopez's statements and admissions, as well as a report from the police and the Medical Examiner. The evidence established that on February 15, 2002, at 10:30 p.m., police arrived at Lopez's apartment on Hoe Avenue in the Bronx. Police found the door open and, upon entering, saw Lopez standing in front of Torres, who was dead on the couch, with multiple stab wounds. The officers observed a bloody knife on the kitchen floor. When directed to step outside the apartment, Lopez told the officers that he "could not take it anymore." At approximately 10:45 p.m., he was arrested and brought to the 41st Precinct for questioning.
At the precinct, Lopez waived his Miranda rights. When the investigating detectives asked "what happened tonight?" Lopez responded:
My wife, Nilda Torres, started drinking a lot since 1999 - vodka. Tonight she started accusing me of having an affair with a woman on the second floor and [, ] as usual, started to abuse me physically and verbally.
This started at 6 p.m. tonight. She is mentally sick and when she drinks. She gets much worse. Tonight I was in bed watching TV and she came into the bedroom holding a knife in her right hand.
She says you keep fucking with that woman, I will kill you. I told her to try... and kill me when I am asleep or I will take that knife and stab you in the belly.
She then came at me with [the] knife and I was able to take the knife away and stab her six times. I then go to my next door neighbor and tell her I stabbed my wife [and] call the police. I put a ten inch knife with duct tape on [the] handle on the kitchen sink. This is the knife I used to stab Nilda.
At 4:10 a.m., an Assistant District Attorney ("ADA") questioned Lopez on videotape, which was played for the jury at trial. Lopez stated that he was sixty-six years old and worked as the superintendent of the building where he and Torres had lived for four years. They had lived together for a total of sixteen years and, over the past few years, Torres's drinking problem had worsened. Lopez said that Torres once told him that she did not care if she dropped dead from drinking the next day, to which he responded that he wished she would drop dead that day. Lopez also told the ADA that Torres had stabbed him on several occasions and revealed stab wounds on his arm, hand, stomach, and torso. At the time, there was a criminal case pending against Torres for allegedly stabbing Lopez in the hand. Lopez stated that Torres was "mentally disturbed" and that he had tried to sleep in a separate room from her, which he claims she would not allow. He was unable to fall asleep in the same bedroom with her for fear that she would attack him. He stated, however, that he was capable of defending himself unless she stabbed him in the back, and that he was not afraid Torres would kill him. He further commented that he was "an idiot" and should "have walked away from [Torres] a long time ago."
Lopez told the ADA on the videotape that, on February 15, 2002 at approximately 6:00 p.m., he and Torres began fighting when she accused him of having an affair with a woman in their building. She had been making this accusation since 1999, and he told her to leave him alone because he did not want any more problems. She continued to yell at him, until around 10:00 p.m., when she entered the bedroom with a 10 inch kitchen knife. Lopez told Torres, "you better go back to the living room because if you attempt anything with that knife, and you don't kill me, I'm going to take the knife away from you and I am going to kill you because I'm fed up with it because you have been abusing... me like that." Torres lunged at Lopez, who sustained a wound as he deflected the knife with the palm of his hand. He stated that she made him "so angry when she did that" that he slapped her in the face, took the knife away from her, and told her to go to the living room and leave him alone. At this point, Lopez stated, Torres was "so drunk, she wouldn't even walk."
According to Lopez's videotaped statement, Torres went to the living room, where she continued to yell at Lopez. He stated that she made him "so angry" that he "couldn't take it anymore, " went into the living room, and stabbed her five or six times. He said he was "tired of being abused, " "just can't take it no more, " and was fed up with the law because a "woman can kill a man and she get[s] away with murder" but if "a man touch[es] a woman, he's in trouble." Lopez concluded as follows:
What I did, I did it, and that's it.... I got to face the fact that I did it, and if I'm guilty, I'm guilty.... I've been very frank.... I've been very helpful, I think, you know, by telling you the truth, you know.... I'm not saying I don't know why I did it.... I did it because I'm fed up with it. I can't take it no more. You know, you push me today, you push me tomorrow, and you push me the following day, be careful because sooner or later, I'm going to get angry and if I get angry, you're going to be in trouble, you see.... That's the person I am. That - that's it. That's the story of my life.
Dr. Margaret Prial of the Office of the Chief Medical Examiner performed Torres's autopsy. Torres suffered eleven stab wounds, including wounds to her head, face, neck, torso, and left arm, ranging from one-quarter of an inch to eight inches in depth. The fatal wounds were the "stab wounds of torso with penetration of heart and perforation of duodenum and mesentery." Torres also had bruises on her scalp and left arm. Dr. Prial testified that the wound on her left arm was consistent with an effort at self-defense. The toxicology report indicated that Torres, who was approximately 5'9" tall and 180 pounds, had.37 grams of alcohol in her blood and urine, as well as cocaine in her blood, brain, and urine.
At the close of the People's case, Lopez moved to dismiss on the ground that the prosecution had not "established a prima facie case." Justice Newman denied the motion.
2. Lopez's Trial Testimony
Lopez took the stand in his defense and testified that he felt threatened by Torres' behavior. He elaborated on earlier incidents with Torres involving threats and attacks. On November 21, 2001, Torres attacked Lopez with a knife and cut his hand. After her arrest on his complaint, a protective order issued against her, barring her from being near Lopez if she "committed any disturbances." Although Lopez initially told Torres's lawyer that he did not want her to live with him anymore, he allowed her to stay when she returned shortly thereafter. Following her return, she continued to threaten and attack Lopez (including an incident a week before the fatal night), causing Lopez to call the police "many times" to report violations of the protective order, but not on the night of the killing because his phone was out of order.
On February 15, 2002, Torres was in the midst of a three-day drinking binge. When Torres drank, she became belligerent; and on this occasion she threatened him, saying that Lopez was "not going to live past today because [he was] fucking with that whore from the second floor." As a result, Lopez was only able to sleep for a few hours each of the three previous nights. Lopez went to work at 9:00 a.m. the day of the killing and picked up his pay on the way home. Around 3:30 p.m., he laid down in the bedroom while Torres continued drinking. While he was laying down, Torres began "fighting alone, " threatening that she would kill Lopez and that "[t]onight [was] going to be [his] night." At approximately 9:30 p.m., she entered Lopez's bedroom with a knife in her hand, telling him, "[w]ake up son of a bitch, I'm going to kill you." He complied with her direction to stand and responded "Nilda, please, do not start with your nonsense." Torres lunged at Lopez with the knife, saying she was going to kill him, and stabbed his right hand five times. He hit her in the face and took the knife away from her.
Lopez then went into the living room, holding the knife, and Torres followed. He sat on the sofa and told her to stop fighting with him, telling her "Nilda, please do not continue with this nonsense, " and that he "didn't want any more problems from the ones [they] already had." Lopez also reminded her about plans to celebrate Valentine's Day. Torres responded: "go celebrate with the whore from the second floor because from tonight on you're not going to live because I'm going to kill you." When he stood up, Torres told him, "[y]ou're a sucker, you don't have any strength, not even to kill a fly." At that point, Lopez "lost [his] mind" and stabbed her. He only remembered stabbing her six times. At the time, his "head was not in its place. It was not" him, and he "did not want to kill her." Lopez also testified that, unlike previous occasions when Torres threatened him, this time he could not convince her to drop the knife. Lopez thought that "definitely that on this evening she was going to kill" him. He believed that "if [he] did not kill her on this day she was going to kill" him. Lopez testified that unlike the previous occasions when Torres had threatened him, this night was different because "other times [when] she had threatened [him] with a knife in [her] hand, [he] would convince her, by speaking to her, to drop the knife to the floor, that [he] did not want to hurt her." Lopez testified that on this occasion, she would not relinquish the knife, and he thought that [d]efinitely  on this evening she was going to kill [him.]" Lopez testified that he believed that "if [he] did not kill her on this day she was going to kill" him.
After stabbing Torres, Lopez entered the kitchen and dropped the knife. He went next door to his neighbor's apartment and told her to call the police because "[he has] wounded Nilda, and [does] not know if she's dead." He returned to his apartment to wait for the police, leaving the door open so they could enter safely. He knew that "when it has to do with these type of cases, the police come to knock on the door with their pistols in their hands. And the way [he] had [his] head at the moment, if that would have happened, it would have been another tragedy."
Lopez also testified that his chronic asthma causes "mental confusion, " and that, when he has "bad moments, " his high blood pressure makes breathing difficult. When he was placed in the police car, Lopez "wasn't feeling well [and his] head was bad because it had been two days, three days, that [he] hadn't been able to sleep." At the precinct, he did not have his glasses or asthma inhaler. He was feeling "very bad." His "head was not in the right place" and he "just wanted to leave there as soon as possible." As a result, he responded affirmatively to all of the officers' questions and was unable to read the statement before signing it.
Lopez explained that during the videotaped confession, his "mind was not in the right place, " he was half-asleep, and he said "the first thing that came to mind.... [He] said what happened that night but not in the proper manner that [he] was supposed to." He stated that he was not the same person as in the videotape because that man was "pissed off" at Torres for fighting with him: "I'm not that kind of person. The person that was giving those statements there was a nut. It was not me." Eight months later, at the trial in October, his mind was clear and the events leading to the murder had been "playing and playing" in his mind while in jail awaiting trial. He concluded that "the reason why [he] killed [his] wife was because at the moment that she started lunging at [him] with the knife [he] lost it."
Lopez did not contend that he was experiencing extreme emotional disturbance at the time of the killing. He offered no evidence in support of the affirmative defense of extreme emotional disturbance. At the end of the defense's case, trial counsel renewed his motion to dismiss, and Justice Newman denied the motion.
Lopez's lawyer, Ortega, argued that Lopez killed Torres in self-defense, out of fear that she was going to kill him. Torres's death was justified because Lopez had to do something before she killed him; he was in legitimate fear for his safety. Ortega argued that Lopez was in shock, upset, sleep-deprived, and having trouble breathing when he made his written and videotaped confessions, causing him to give incomplete or inaccurate answers to the leading questions. Now that his mind was ...