DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Pro se petitioner Maurice A. Hawkins ("Hawkins" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on the basis that he is being held in Respondent's custody in violation of his federal constitutional rights. Hawkins is incarcerated following judgment entered against him on August 24, 2007, in New York State Supreme Court, Monroe County, following a jury verdict convicting him of Attempted Murder in the Second Degree (New York Penal Law ("P.L.") §§ 110.00, 125.25(1)), Assault in the First Degree (P.L. § 120.10(1)), and Burglary in the First Degree (P.L. § 140.30(1), (2), (4)). Hawkins is serving an aggregate sentence of 25 years, plus five years of post-release supervision.
II. Factual Background and Procedural History
On October 13, 2006, Petitioner entered a two-story apartment in Rochester, New York, occupied by 16-year-old Tyshon Maddox, his brothers Antwon Maddox ("Antwon") and Draquan Maddox, and his grandmother, Sharon Yancey ("Yancey"). The three brothers each had their own bedroom on the second floor, while Yancey slept downstairs in the living room. It was at about 2:30 in the morning when Antwon, who was playing a video game in his room, heard someone bang on the front door; enter the apartment; and run upstairs. Antwon then heard three gunshots.
Tyshon was asleep in his bed when he heard and felt a gunshot. He looked down and saw blood and a "big hole" in his chest. He tried to get up but could not. Although the lights were off in Tyshon's bedroom, there was some illumination from the hallway light. Tyshon was able to see Petitioner, whom he knew by his street name of "Green Eyes, " standing next to his bed, wearing a red hooded sweatshirt and holding what he described as a "shotgun." Tyshon saw Petitioner's face as he backpedaled out of the bedroom.
Antwon ran to his bedroom window in an attempt to escape. Straddling the window-sill, Antwonn observed a tall black male leaving through the front door, wearing a red-hooded sweatshirt and holding what appeared to be a shotgun. Antwon recognized him as the individual he knew as "Green Eyes".
Tyshon was unresponsive by the time police arrived. Antwon told Rochester Police Department Officer Rene Cruz ("Officer Cruz") that someone broke into the apartment and shot Tyshon. However, Antwon did not tell Officer Cruz that he knew who the shooter was, and Officer Cruz did not ask him if he knew the shooter's identity. Fearful of retaliation, Antwon did not inform the police that Petitioner (a/k/a "Green Eyes") was the shooter until three days after the incident. By that time, Antwon had moved out of the neighborhood.
The day after the shooting, Rufodina Ware, who lived in the same neighborhood as the Maddox brothers, saw Petitioner in a parking lot near the apartment complex, wearing jeans and a red hooded sweatshirt.
Eric Freemesser, a firearms examiner with the Monroe County Public Safety Laboratory, testified that he examined two.30 caliber rifle cartridges recovered from Tyshon's bedroom, and concluded that they were ejected from a semiautomatic rifle.
Following Antwon's testimony, defense counsel informed the trial court that should the prosecutor not call Tyshon's grandmother, Yancey, he would request a missing witness jury instruction because she was present at the apartment on the night of the shooting. Yancey had failed to identify Hawkins from a photo array and had described the shooter as about five feet, seven inches tall, while Hawkins in fact was about six feet, five inches tall. The assistant district attorney argued against the instruction, noting that Yancey could not make a positive identification and therefore her testimony was not favorable to the prosecution. He also argued that Yancey's testimony would be cumulative to that offered by Tyshon and his brother, save for her estimation of the shooter's height as 5'7".
Defense counsel argued that Yancey's testimony would not be cumulative because it substantially contradicted the testimony of both boys with regard to their description of the shooter's height. Defense counsel further urged that the prosecutor had misinterpreted the prerequisites of a missing witness charge as laid out in People v. Gonzalez , 68 N.Y.2d 424 (1986),  specifically, the "control" element. According to defense counsel, Gonzalez "talks about the position of the witness being in such a position that it would be anticipated that their testimony would be favorable[, ]" i.e., that they "were not in a position to have a bias or interest or hostility contrary to the People...." Defense counsel conceded that Yancey's testimony would not be favorable to the prosecution, but argued that due to her relationship to Tyshon (as his caretaker and grandmother), it was inconceivable that one would anticipate her providing testimony unfavorable to the prosecution.
The trial court declined to give the instruction, finding that Yancey's testimony would be cumulative and not favorable to the prosecution. The trial court further stated that because the prosecution had provided reports containing Yancey's statements to the police, Yancey was available to testify for the defense. The trial court stated that he would afford defense counsel the opportunity to comment extensively in his summation about the prosecution's failure to call Yancey.
During his cross-examination of the prosecution's witnesses, trial counsel appeared to pursue a defense theory that the trial court characterized as follows: Tyshon and Antwon identified Petitioner as the shooter because they believed that Petitioner was associated with Rasheem Gayden ("Gayden"), who shot and killed the Maddox brother's half-brother, Andre Knox ("Knox"), on September 15, 2006, and who also threatened their father, Andre Maddox ("Andre"), approximately one week before the incident. Both Antwon and Tyshon testified on cross-examination that Gayden was involved in the death of Knox, and that Gayden and Andre had argued about this in early October of 2006. During that argument, ...