Mills v. Girdich (614 F. Supp. 2d 365, 2009)

ORDER

RICHARD J. ARCARA, Chief Judge.

This case was referred to Magistrate Judge Victor E. Bianchini, pursuant to 28 U.S.C. § 636(b)(1). On April 28, 2003, petitioner filed a petition for a writ of habeas corpus. On November 13, 2008, petitioner filed a motion to stay and amend the petition for a writ of habeas corpus On January 22, 2009, Magistrate Judge Bianchini filed a very thorough Report and Recommendation, recommending that the original petition for a writ of habeas corpus be dismissed and that the petitioner’s motion to stay and amend the petition be denied.

Petitioner filed objections to the Report and Recommendation on March 20, 2009 and the respondent filed an affidavit in opposition to petitioner’s objections.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions, the Court adopts the proposed findings of the Report and Recommendation.

Accordingly, for the reasons set forth in Magistrate Judge Bianchini’s Report and Recommendation, petitioner’s petition to stay and amend the petition for a writ of habeas corpus is denied and the petition for a writ of habeas corpus is dismissed.

The Court finds that petitioner has failed to make a substantial showing of the denial of a constitutional right and, therefore, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2).

SO ORDERED.

REPORT AND RECOMMENDATION

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Pro se petitioner Rasheen Mills (“Mills”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that his conviction on charges of second degree (depraved indifference) murder and criminal possession of a weapon was unconstitutionally obtained. This matter was referred to the undersigned for the purposes of hearing and deciding non-dispositive motions, and issuing a report and recommendation regarding the disposition of Mills’ petition. (Docket No. 14).

II. Factual Background and State Court Procedural History

On July 22, 1999, sixteen-year-old Nola Okorougo (“Okorougo” or “Nola”) was fatally shot once in the back while she was in front of her house at 295 Auburn Avenue in the City of Buffalo. The bullet lodged in Okorougo’s body was from a .380-cali-ber semiautomatic gun, but the weapon was never recovered. Several eyewitnesses, including Okorougo’s boyfriend, Edward Jaycox (“Jaycox” or “EJ”), identified Mills as the shooter. Ten days after the shooting, Mills turned himself in to the police. Mills was subsequently indicted by an Erie County Grand Jury on two charges of second degree murder — depraved indifference (N.Y. Penal Law § 125.25(2)), and intentional (N.Y. Penal Law § 125.25(1)). He was also indicted on one charge of second degree criminal possession of a weapon (N.Y. Penal Law § 265.03(2)). The trial court denied the defense’s motion to suppress certain items seized from a consensual search of Mills’ mother’s house, as well as a line-up identification of him by Cheryl Fabbiano (“Fabbiano”), one of the decedent’s neighbors. Mills’ jury trial was conducted in Erie County Court (Amico, J.), in January 2000. The theory of the defense was that Mills acted in self-defense and was afraid that the decedent and/or Jaycox, with whom he had had a physical altercation two days prior to the shooting, were about to use deadly physical force against him.

A. The Prosecution’s Case

Jaycox, nineteen years-old at the time of trial, had known Mills from school for about two years before the shooting. T.67. They got along at first, but “after awhile [they] fell apart,” meaning they were not speaking any more. T.68. Jaycox stated that the only actual fight he recalled with Mills occurred on July 20th, two days before the incident. T.68. Kerry Eldridge (“Eldridge”), one of Mills’ friends, said that Mills and Jaycox had fought “a few times in Jasper Parish projects,” and there was a fight at the Regal Cinema, but Eldridge had not seen that one. T.218.

At the July 20th fight, which broke out when Mills and Jaycox got off the bus coming home from summer school, Mills hit Jaycox with a stick at the corner of Delevan and Grant streets. T.68-69. Okorougo was also was present at the fight. T.70.

According to Jaycox, the fight started from a confrontation they had a couple weeks before when Mills “had said some words to” Jaycox when they were walking towards Okorougo’s house at 295 Auburn Avenue. T.71. Robin Bell (“Bell”), one of Okorougo’s friends, also witnessed the July 20th fight starting while she and Okorougo were still on the bus. T.184. Jaycox was chasing after Mills, who dropped his pager on the ground. T.184. Kerry Eldridge, one of Mills’ friends, said that as Jaycox was chasing after Mills, Mills “turned around and jabbed him right in the face.” T.217.

Nevertheless, Jaycox testified that he threw the first punch on July 20th, hitting Mills in the face. T.71. Mills “then gets on the phone and starts calling people and starts running towards Grant Street and Delevan.” T.71. “[T]hen a car pulls up and his brother and some older guy gets out of the car.” T.72. Mills “exchanged words with them, and then the older guy told him to handle his business, and that’s when they tried to jump [Jaycox].” T.72. Mills and his brother Elliott jumped Jaycox and they got into a fight right there on the corner. T.72.

Jaycox said he was hit a “[c]ouple times” during the fight. T.73. At one point, Jay-cox said, “I was grabbed by Rasheen from the back side and he was telling his brother to hit me, but when his brother went to punch me, I moved out of the way and his punch went past my face.” During the fight, Okorougo was trying to get Mills off of Jaycox, and “was punching him in the face too.” T:73. Bell said that Okorougo was wearing rings, and when she hit Mills in the face, his eye was bleeding. T.182. She had a “big ring,” big enough to hurt somebody with. T.187. Bell also said that Mills was holding Jaycox at one point, telling the other guy to hit him. T.182. Bell started kicking Mills and telling him to let go. T.182. Eldridge testified that Mills had a “big stick” “like a 12-foot stick, like a four-by-four” piece of lumber. T.246.

Mills then let Jaycox go, and Jaycox punched Elliott in the face, “and that was the end of it.” T.73. Jaycox testified that he and Okorougo left.

Two days later, on July 22nd, at about 7:15 p.m., Jaycox and Okorougo were walking down her driveway at 295 Auburn so that Jaycox could smoke a cigarette. T.75, 76. As he was having his cigarette, Jaycox noticed Mills on a silver “trick bike” coming up Auburn Avenue from Parkdale towards Grant Street. T.76-78. Mills was with a “small, dark-skinned female” with a “glass eye” wearing a “gray dress.” T.77. Upon seeing Mills, Okorougo walked further down the driveway, and Mills said, “there go that bitch ass Nigger, and goes in his right pocket and pulls out a gun.” T.78. It was a “small black handgun,” an automatic. T.79. Jay-cox claimed that he did not hear Okorougo say anything to Mills. However, on cross-examination, Jaycox did admit that Okorougo “was going to confront him about what [Mills] said on the 20th, that he was going to get his sister or somebody to beat her up.” T.123. Upon being questioned as to whether Okorougo had said anything to him about that, Jaycox said no and that he did not know-why Okorougo was walking out to the street. T.124.

When Mills yelled out, Okorougo was “past the sidewalk, going almost into the street in the driveway area.” T.78. Mills was diagonally across the street from them, on the sidewalk. T.80.

Jaycox said that when Okorougo saw the gun, she started to run back up the driveway. Mills fired the first shot “[m]ore angled towards the ground” as if “he was fidgeting with it[.]” T.81. After that, “that’s when he started just shooting it.” T.81. After the “first shot rang off’ was when Jaycox started running. T.81. As he was running, Jaycox heard four to five shots coming from behind him. T.82.

When they got to the porch, Jaycox asked Okorougo if she was hit, and she said yes. T.82. Jaycox took of his t-shirt and wrapped it into a knot, and was holding it against her gunshot wound (on her upper right shoulder, more on her back). T.83. Okorougo did not speak anymore and did not regain consciousness. By the time the police arrived, Okorougo did not have a pulse. T.139.

Because a crowd was gathering and Jay-cox was getting more upset, the officers put him in the back of the patrol car. Before doing so, they did a routine pat-down of Jaycox down when they arrived, and found no weapon. Jaycox testified that he never possessed a handgun before or during the shooting, and never threatened Mills with a handgun at any time. T.75. Neither did Okorougo. T.76.

During their investigation of the scene, the police found five shell casings in the street on Auburn Avenue and on the sidewalk in front of Okorougo’s house. T.144, 284, 307. The casings came from a 380 caliber semiautomatic weapon. T.284, 286. However, the weapon used was never recovered. T.144. By the time they arrived, the shooter had left the scene. T.176. The police recovered from Mills’ residence at 91 Parkdale certain items that the shooter was described as wearing at the time of the shooting, a blue and silver football jersey with the number 89 in black. T.312. The police also found the “trick bike” described by Jaycox, a 20-inch “dyno” bike which was lime-green, On August 1 about 10 days after the shooting, Mills turned himself in to the police. T.474-76.

Two friends of Mills’, Kristina Kessel (“Kessel”) and Kerry Eldridge (“Eldridge”), testified that on July 21st, Mills had come up to them while they were sitting on their porch. Mills was saying “that E J and them, they just tried to jump him again and made him break his new CD player and drop it on the ground, and then he showed us a gun and said he was going to get that bitch.” T.190. By “that bitch,” Kessel and Eldridge understood Mills to mean Okorougo “[bjecause she had cut his face the day before” during the fight between Mills and Jaycox. T.191, 213. Kessel had not witnessed the fight but had heard about it from Mills. Eldridge was present at the fight and said that Mills had to get stitches where Okorougo punched him. T.215. Eldridge really did not know Jaycox well. T.216.

According to Kessel, the gun Mills displayed was “small, black”; she “didn’t get an actual look at it” because he “just pulled it real fast” from his pants. T.191, 195. Eldridge said that it was an 380 automatic. T.212. Eldridge had seen Mills with the gun the week before at his house on Parkdale; Mills had it out and was cleaning it. T.213.

Kessel’s mother, who was also present said, “Rasheen, give me the gun. Take the clip out. Give me the gun and go home for a couple days and let it cool down.” T.192. Kessel told him to “just ... get some bitches to jump her, or just get somebody to fight her rather than going do [sic] jail.” T.192. Mills “didn’t say nothing [sic].” T.192. He rode away on his bike, which was “like a Dina stunt bike....” T.192, 214.

Eldridge testified that he had known Mills for about five to seven years. On the night of July 22nd, Eldridge was on his way to the Wilson Farms convenience store located on Auburn and Grant. “All of a sudden [he] heard pow, pow, pow, came outside, ran around the corner and looked and seen [sic] Rasheen leaving the scene going up Auburn towards Parkdale,” where Mills resided at the time. T.201, 203. Mills indicated that he heard five shots fired. Mills was on a “green Dina back, 20-inch bike.” T.202. After hearing the “pow, pow, pow”, Eldridge “got panicked, like [he] was in shock” and just stayed there until after the police officers came and went. T.203. Although he only saw the person’s back, Eldridge was certain the person on the bike was Mills. T.235.

Eldridge spoke with two police officers, and told them that he heard five shots and saw Rasheen leaving towards Parkdale. T.205. Eldridge also told the police that he believed Mills got the gun from “Carlton” who lived at 38 Perkins Street. Mills used to hang out there. However, Mills was not there after the shooting. T.206, 208. Eldridge admitted that when he signed his statement, he used the name of his older brother, Tyshawn Johnson, because he was “in shock ... and ... seeing one of [his] friends do something like that is bad, period.” T.209. Eldridge testified that he had never had any problems with Mills.

Emily Rivera (“Rivera”) lived a couple of houses down from Mills and had known him for about two years before the incident. T.260-61. At about 7:20 on July 22nd, she was riding her bike down Park-dale towards the store. As she turned onto Auburn, she hard “[a]bout five, four or five” shots and saw “a girl running out the driveway screaming.” T.262. Rivera saw Mills “coming out the drive[way], riding on his bike.” T.262, 263. The girl had a dress on, “like a green flowered dress,” and “was just screaming, oh, my God, what did you do? What did you do, Rasheen?” T.262-63. Rivera saw Mills drop “something black” on the ground, but she could not see what it was, although she “thought it was the gun.” T.263-64. Mills rode past Rivera but did not say anything to her, and she did not see where he went. T.264. Rivera kept going and turned into the driveway where the girl had been shot. T.265. Rivera saw Okorougo’s stepfather holding her, and Jaycox was looking for the phone. When the ambulance and police arrived, Rivera left and rode her bike home. T.265. She gave a statement to the police later that night. T.266.

Sara Lugo (“Lugo”), who did not know any of the parties involved, testified that she was visiting friend at 295 Auburn on the night of July 22nd. They lived in the front house; Okorougo lived in a cottage set farther back on the property. T.249. Lugo recalled that she was watching the Yankees game in the front room of the house, which had a large window with a view of the street. T.249-50. She heard a “bam, bam, bam,” which sounded “like a gunshot.” T.250. When she looked outside, she saw Okorougo running up the driveway. There was a “skinny, tall guy, black guy behind her with a gun.” T.251. He was “[stationary” in the street. T.251. She had never seen him before and did not remember what he was wearing. T.252. When she went, to the window, the guy was still shooting. T.253. After the shooting stopped, Lugo called 911.

There was another eyewitness from the Auburn Street neighborhood, Cheryl Fabbiano (“Fabbiano”). Fabbiano lived on Auburn near Parkdale in July of 1999 with her two daughter and her boyfriend. T.414. Her house was on the same side of the street as Okorougo’s. At about 7:20 p.m., Fabbiano was sitting on her couch when she heard five or six gunshots. T.416. She went to the door and opened it and saw a black female and a black male; the female was wearing a grayish-blue dress and running on foot and the male was on a bike. The male had braids in his hair and was wearing a black shirt with white numbering. T.417. Fabbiano heard the girl in the dress say, “I fucking can’t believe you did that.” T.418. That sort of made Fabbiano nervous. Fabbiano had seen the male before around in the neighborhood. T.419. Fabbiano identified Mills as the shooter twice during a line-up procedure. T.373-74.

Anthony D. Stefano (“Stefano”) was the last eyewitness. He was walking west on Auburn Avenue on the way to the corner store at about 7:15 p.m. on July 22nd. T.427. He was familiar with the area, having grown up there. Also, the girl he was dating lived there. T.427. Stefano recalled that he noticed, across the street from him, a guy and a girl; the guy was walking a bike, straddling it, and the girl was walking along with him. T.430. The guy was between five-eleven and six-feet, with braided hair and a dark football jersey with white numbering on it. T.430. The girl was wearing a dress. T.430. They were on the opposite side of the street from Stefano, about even with him. T.431.

Stefano said that he saw two young black females in front of 295 Auburn. Stefano was the only witness who testified that he did not see a young male in jean shorts and a white T-shirt (i.e., Jaycox) at the end of the driveway with Okorougo. Rather, according to Stefano, he saw Jay-cox in the backyard of 295 Auburn, after the shots were fired. T.435.

Stefano recalled that one of the young women in front of 295 Auburn began “exchanging fighting words” with the girl in the dress. T.431. They were “saying you bitch this, and, you know, to that effect as if they were ready to fight.” T.431. The girls approached each other and just as they were about to meet in the middle of the street, “the guy on the bike threw his bike down and pulled out a pistol, and that startled the girl in the street and her friend ... and they began to run up the driveway of 295 Auburn.” T.432. According to Stefano, the guy with the gun said, “you fucking bitches, don’t pull that shit around here, or something like that.” T.433.

Stefano stopped walking as soon as he saw the pistol come out. T.434. Stefano heard “[ajbout six” gunshots, fired as the guy “was kind of stepping rapidly towards the middle of the street and towards the driveway that they were running up.... ” T.435. The shots were fired one right after another. T.435. Stefano testified that the shooter had his arm “extended and pointed” “in the direction of the people running.” T.453. When the first shot was fired, the gunman was “10, 15 yards at the most” away from the closest girl (i.e., Okorougo), whose back was to him.

After the guy stopped shooting, he and the girl in the dress “fled the opposite way back down Auburn.” T.436. Stefano heard the girl in the dress say, “what did you do that for? Are you crazy, or something. ...” T.436-37. Stefano went to the corner store and told the clerk to call 911 because somebody had been shot.

The county medical examiner testified, see T.479-86, that during the autopsy he found one bullet hole located on the right-side of the victim’s back in the shoulder area. T.481. The bullet had penetrated the right lung and ended up in the right clavicle. The bullet was large in caliber, jacketed, and slightly deformed. T.484. There was a large amount of blood in the chest cavity. The victim died of a gunshot wound through the back, which caused damage to the lung, which in turn caused loss of blood, internal bleeding, and pneumothorax (air leaking into the chest cavity). T.484.

B. The Defense Case

Prior to the defense case, trial counsel moved to dismiss the case. This was denied by the trial judge.

The first witness for the defense was Gabrian Turner (“Turner”). T.485. Turner said that she and Mills were walking to the store and talking to each other. They were not talking about Okorougo or Jay-cox. T.488-89. According to Turner, when they approached the driveway at 295 Auburn, Okorougo walked out, kicked off her shoes and said, what’s up mother Fucker? T.489. Turner testified that she had no problems with either Jaycox or Okorougo. At the same time that Okorougo spoke, Jaycox “was lifting up his shirt and like moving back.” T.490. Turner stated that Jaycox was still facing the street and was walking backwards. When asked what she saw when Jaycox lifted up his shirt, Turner said, “I seen, well, I thought I seen a gun.” T.490. Mills then “got off his bike and pulled out his gun, and after he pulled out his gun, I turned and I ran.” T.490. Turner admitted that she did not see the shooting. Turner had known Mills for about a month before the shooting; they were dating. Mills had told her that when Okorougo punched him in the eye, one of his contact lenses ripped. T.491. He stopped wearing his contact lenses after that because it was “no good to wear one.”

Turner testified that she gave a statement to the police three days after the shooting on July 25, 1999. T.487. That was the first time she had spoken to the police. In that statement, she mentioned that Jaycox had a gun. However, Turner testified differently at the grand jury, saying that she did not know what she saw. Turner claimed, “it was so many people pressuring me, telling me that it couldn’t have been a gun because how it happened, so I was so scared, I don’t know because they were threatening me about going to jail and stuff about what happened.” T.493-94. Turner admitted that at the grand jury she did not tell them that she saw a gun but she told them, “I seen something” T.494. She did tell them that she saw Jaycox pulling up his shirt. She testified that she was threatened that she could go to jail if she insisted that Jaycox had a gun on him. T.495.

On cross-examination, Turner admitted that her relationship with Mills ended in the summer of 1999, after they had an argument. She admitted that the police came to her house during that argument because Mills pushed her into a couch. T.499. Mills also damaged a radio belonging to her. She filed charges against him as a result of that incident, but did not proceed with the charges. T.501.

When shown a photograph of Jaycox, Turner stated that she did not recognize who it was. T.501. Turner admitted that she has damage to her left eye (glaucoma), but stated that her vision in her right eye was fine. T.502.

Turner testified on cross-examination that while she and Mills were walking up the street, Mills asked her if she had been “talking to a certain boy,” and she said no. Turner denied, however, that she and Mills were arguing. T.504. Turner admitted that she referred to him as being “hyper” that night. T.505. Turner testified that she was wearing a blue dress with flowers on it and that Mills had braids in his hair, no glasses, a football jersey, jean shorts, and was riding a “dyno bike.” T.506.

Turner admitted that when the decedent called out, “what’s up mother fucker,” the decedent did not have anything in her hands. T.508. Turner recalled that the other person (i.e., Jaycox) was “like in the middle of the driveway” and was not anywhere near the decedent. T.509. Turner admitted that the person whom she claimed to have seen with a gun under his shirt did not pull out the gun, threaten anyone with the gun, or aim or fire the gun. T.510.

When confronted with her grand jury testimony, Turner admitted that she had told the grand jury that, she “didn’t know” what it was that she saw, and that the “something” and “could’ve been a belt buckle.” T.511-12. The prosecutor confronted Turner with her grand jury testimony in which she said, “I saw E J shirt go up. It could have been a belt buckle I saw. I never saw EJ with a gun. I think EJ had on a white T-shirt. I’m not sure what I saw.” T.516 Turner claimed at trial, “I don’t remember testifying that way and stated, you questioned me so many times, telling me so many different stuffs.” However, Turner would not deny that she said what she had said at the grand jury. T.517. Turner had also told the grand jury that she and Mills had broken-up at the time of the shooting because the father of Turner’s baby was coming home from jail. T.517. Turner claimed that she did not remember whether she said, “I can’t fucking believe you did that,” after Mills had fired. T.519

Turner admitted that she spoke to Mills on the phone after the shooting; he called her later that night and told her that she should get out of her house. She agreed that she did not stick around on July 22 to talk to any of the police investigators who were on her street. T.522. She admitted that she went away to Erie, Pennsylvania for three days but claimed that she had plans to go there before the shooting.

Turner said that Mills pulled out a small black handgun but she could not remember whether it was in his right or left hand. At that moment, Okorougo turned away from him, and Turner also turned away from him. T.512-13. Turner ran and said, “what the fuck is [sic] you doing?” T.513. Turner did not see Mills fire the first shot. She did not see him aiming toward Okorougo. T.514 Turner admitted that she heard more than two shots.

Turner admitted Mills had told her about the fight on July 20th in which Okorougo had punched him in the eye with her ring, and that he referred to her as the “bitch that hit him in the eye with the ring.” T.524. Turner admitted that she had visited Mills at the holding center and that she had received phone calls and received letters from him. T.525. In fact, Turner had talked on the phone with Mills recently. Turner admitted that the phone call was toward the end of 1999 a little before 2000, i.e., just before Mills’ jury trial was set to begin. T.534. After this conversation, Turner testified, she had become fearful that “someone was getting out of jail” and was going to kill her for turning “state’s evidence” against Mills. T.526. Turner apparently received a death threat from someone whom she did not identify. This “someone” was never identified by Turner, and Turner claimed that it was not Mills.

On re-direct examination, Turner insisted that she did not feel threatened by Mills. T.527. With regard to the alleged threat by the police that she would be prosecuted for perjury if she kept her story of July 25th, in which she had mentioned that Jaycox had a gun, Turner said, “They told me if I keep saying that E J had a gun that I could do 1 to 7 [years in prison].” T.530.

On re-cross examination, Turner was questioned further about whether or not Jaycox had a gun in his waistband. Turner was evasive. She ultimately said, “I don’t know.” T.531. Turner agreed that what she saw could have been about belt buckle. T.532.

The prosecutor then questioned Turner about her conversation with Mills and “turning state’s evidence,” as she put it. The prosecutor asked her if she remembered coming to his office with her mother, who had asked the prosecutor to protect Turner. T.533. Turner continued to maintain that it was not Mills who was issuing the threat and attempted to deny ever mentioning that the death threat was because of her “turning state’s evidence.” Turner said that maybe her mother mentioned the threat, but she had not. T.533.

The second witness for the defense was Edmund Bliss (“Bliss”), who testified that he had known Mills for about 15 years that he had been in a relationship with Mills mother, and that he considered Mills to be his stepson. T.535. Bliss testified that he kept in touch with Mills.

In July of 1998, the year before the incident, Bliss and Mills were sitting outside on their steps. Bliss recalled that a group of fellows came out of a car and approached the house. Bliss said that “they wanted to fight.” T.538. At first Bliss told Mills that he should not fight, but the other boys “insisted on fighting, so they fought head up.” On direct Bliss said that the other pugilist “possibly” was Jay-cox. T.539. On cross, however, Bliss readily admitted that it was not Jaycox. According to Bliss, the four boys in the car wanted to jump on him, but because Bliss was there, they decided to fight one-on-one. T.540. Bliss did not know these four individuals, but the one who fought Mills was a person he identified only as “the guy.” Because he was bigger, “the guy” got the best of Mills. At the time, Bliss thought that they had resolved any differences by fighting one-on-one and that it would clear up from that point on. After it had broken up, Bliss was helping Mills to the house, Bliss looked over to the side and noticed that “the guy” had a gun in the car. Bliss said, “he held the gun up, you know, showing what this could have been, what could have occurred, I guess if I would have jumped into it.” T.541. Bliss admitted that the person who held up the gun was not Jaycox. T.546.

Bliss also testified that in April of 1999, he was on the way to the store with Mills and a friend of his, and when he came back out of the store he found that Mills had been hit and his nose was “bleeding and broke” and “the guy was fleeing the scene and running down the street.” T.542. Bliss did not know who that guy was and could not give a full description of him. Bliss testified that he took Mills to the hospital, where the medical providers stated that it appeared that Mills nose was broken by being struck by an object. T.543.

During the summer of 1999, Bliss became aware of that Mills was having some problems with “about three fellows who jumped on him on the east side of Buffalo.” T.537. On July 20, 1999, Mills was brought over to Bliss’s house by one of Bliss’s friends. It appeared to Bliss that Mills had a cut over his eye and that Mills was afraid. T.545.

Bliss stated that in July of 1999 he was not aware that Mills had a .380-caliber semiautomatic handgun and ammunition for that gun. T.548.

C. The Parties’ Requests to Charge and the Jury’s Verdict

At the close of the proofs, the prosecutor asked for a jury instruction on transferred intent, arguing that Mills could have been aiming for Jaycox but Okorougo (the victim) happened to get in the way of fire. The trial judge granted that request. T.551-52.

Trial counsel asked the court to consider charging extreme emotional disturbance on the first count and justification on the second count. The trial judge stated that he saw no evidence of mental disturbance, but there was some proof of conduct by Mills that might go to a justification defense. T.552. The trial court accordingly agreed to charge justification. However, the trial judge refused to charge a lesser included offenses of manslaughter in the second degree or criminally negligent homicide stating that there was “no reasonable view of the evidence that would warrant a charge of reckless or negligent conduct and with respect to the justification, it’s a slim call as it is, [defense counsel].” T.554.

The jury rejected the justification defense and returned a verdict convicting Mills of second degree depraved indifference murder and second degree criminal possession of a weapon, and was acquitted of intentional murder. Mills was thereafter sentenced to concurrent terms of imprisonment, the longest of which was twenty-five years to life on the second degree murder conviction.

D. Post-Conviction Proceedings in State Court

Represented by new counsel, Mills appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. The judgment of conviction was unanimously affirmed. Leave to appeal to the New York Court of Appeals was denied.

Mills subsequently challenged the effectiveness of appellate counsel’s assistance in an application for a writ of error coram nobis filed with the Appellate Division. This was summarily denied. At first blush, it appeared that Mills did not seek leave to appeal to the New York Court of Appeals. However, Mills ultimately produced evidence that he had, in fact, appealed to that court.

E. The Habeas Petition

Mills federal habeas petition raised five grounds for relief: (1) the Grand Jury should have been instructed concerning the defense of justification (self-defense); (2) the trial court erroneously declined to charge the jury on criminally negligent homicide and manslaughter; (3) the trial court erroneously instructed the jury regarding the defense of justification; (4) the trial court’s Allen charge was erroneously given; and (5) appellate counsel was ineffective because she failed (a) to challenge the sufficiency and weight of the evidence supporting his convictions and (b) to challenge trial counsel’s failure to have objected to the trial court’s supplemental instruction regarding the justification defense and Allen charge.

Respondent answered the petition, asserting that ground four (erroneous Allen charge) is unexhausted. Respondent states that although ground four was raised before the Appellate Division on direct appeal, it was not raised in the application seeking leave to appeal to the New York Court of Appeals. Within the Second Circuit, a petitioner has exhausted his state remedies when he has “(i) presented the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts) and (ii) informed that court (and lower courts) about both the factual and legal bases for the federal claim.” Ramirez v. Attorney Gen’l of New York, 280 F.3d 87, 94 (2d Cir.2001). Mills claims that he did fulfill the exhaustion requirement by arguing in his coram nobis application that appellate counsel had been ineffective for failing to argue that trial counsel erred in not objecting to the Allen charge. (Docket No. 22).

Respondent also contends that ground four is procedurally defaulted because the Appellate Division relied upon an adequate and independent state ground in order to deny it. “[Fjederal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim.” Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990); accord Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. 1038 (stating that “as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision,” the adequate and independent doctrine “curtails reconsideration of the federal issue on federal habeas”). In order to overcome a finding of procedural default under this rule, a habeas petitioner must show cause for the default and prejudice resulting therefrom, or that a “fundamental miscarriage of justice” will occur should the habeas court decline to hear his federal claim. Harris v. Reed, 489 U.S. at 262,109 S.Ct. 1038.

As discussed further below in this Report and Recommendation, I agree with respondent that ground four (erroneous issuance of an Allen charge) is subject to an unexcused procedural default, and further habeas review of it is precluded.

Respondent also asserts that ground five (ineffective assistance of appellate counsel) is unexhausted because Mills failed to appeal the denial of his coram nobis application, in which he raised the ineffective assistance of appellate counsel claims, to the New York Court of Appeals. Respondent states that the petition is a “mixed” petition because it contains both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); see also Zarvela v. Artuz, 254 F.3d 374, 377 (2d Cir.), cert, denied sub. nom. Fischer v. Zarvela, 534 U.S. 1015, 122 S.Ct. 506, 151 L.Ed.2d 415 (2001). In response, Mills has submitted a copy of the order from the New York Court of Appeals denying leave to appeal the denial of his coram nobis petition. (Docket No. 22). Therefore, it does appear that Mills’ ground five (ineffective assistance of appellate counsel) has been properly exhausted.

F. The Motion to Stay and Motion to Amend

Some time after respondent answered the petition, Mills submitted a letter requesting a “brief state [sic] of abeyance until the exhaustion of my 440.10 motion or until [sic] the trial court grants further relief....” See Docket Nos. 15 & 17. This Court denied Mills’ motion to hold the petition in abeyance without prejudice to re-filing upon a showing that petitioner is entitled to a stay of the petition pursuant to Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). (Docket No. 18). Specifically, the Court directed Mills, when re-filing his stay motion, to identify the unexhausted claim or claims, and to show that “(1) there is ‘good cause’ for petitioner’s failure to exhaust the new claims; (2) that the new claim relates back under Fed.R.Civ.P. 15 and Mayle v. Felix, 545 U.S. at 650, 125 S.Ct. 2562, to the claims originally pled in the Petition; and (3) that the new claim is potentially meritorious.” (Docket No. 18).

Mills has now filed a renewed motion to stay, along with a motion to amend and a proposed amended petition. (Docket No. 19). In Mills’ renewed motion to stay and motion to amend, he mentions three new claims that he wishes to exhaust by means of a C.P.L. § 440.10 motion: “(1) ineffective assistance of trial counsel, (2) Insufficiency of evidence, (3) Due process.” Respondent has submitted an affidavit opposing the stay and the amendment of the petition. (Docket No. 21). Mills filed a reply affidavit. (Docket No. 22).

Mills’ motion to amend his habeas petition is governed by Federal Rule of Civil Procedure 15(a). Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir.2001); see also Fama v. Commissioner of Corr. Srvs., 235 F.3d 804, 815 (2d Cir.2000). Where, as here, a responsive pleading has been served, leave to amend is required. Fed.R.Civ.P. 15(a). Although leave to amend shall be “freely given,” Fed.R.Civ.P. 15(a), “district courts nonetheless retain the discretion to deny that leave in order to thwart tactics that are dilatory, unfairly prejudicial or otherwise abusive.” Littlejohn, 271 F.3d at 363 (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (listing “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amend ment, futility of amendment” as valid reasons for denying leave to amend)); accord, e.g., Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir.1995); Weeks v. New York State Div. of Parole, 273 F.3d 76, 88 (2d Cir.2001); Marchi v. Board of Coop. Educ. Servs. of Albany, 173 F.3d 469, 477-78 (2d Cir.1999) (“Although leave to amend is usually freely granted, it may be denied within the trial court’s discretion where the proposed amendment would be futile.”) (citation omitted). A proposed amendment is futile “if the proposed claim could not withstand a motion to dismiss for failure to state a claim upon which relief may be granted.” Lucente v. International Business Machines Corp., 310 F.3d 243, 258 (2d Cir.2002) (citing Dougherty v. North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.2002)); see also Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990) (stating that here there is no merit to a proposed amendment, leave to amend should be denied).

To the extent that Mills’ proposed three claims were raised for the first time in his recently filed C.P.L. § 440.10 motion to vacate the judgment, they appear to be procedurally defaulted. This is because the County Court relied exclusively upon a state procedural rule, C.P.L. § 440.10(2)(c), to deny the claims. The United States Supreme Court has held that reliance by a state court upon an adequate and independent state ground to decided a constitutional claim precludes federal habeas review of that claim unless the petitioner can show cause for the default and prejudice attributable thereto, or that the petitioner is factually innocent such that a fundamental miscarriage of justice would occur should the federal court decline to hear the claim. E.g., Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 809 (2d Cir.2000). I note that Section 440.10(2)(c) of the C.P.L. has been held by the Second Circuit to be an “adequate and independent” state ground. Neither cause nor prejudice is apparent on the record before me, and Mills has not made any attempt to establish factual innocence. Because proposed amended claims would be subject to an unexcused procedural default, the Court concludes that permitting amendment of the petition to include them would be futile. Accord Beverly v. Walker, 899 F.Supp. 900, 908 (N.D.N.Y.1995) (“Because the state court made an adequate and independent finding of procedural default, and because petitioner has not made any attempt to show cause or prejudice, this Court will not review his claim. Accordingly it would be futile to allow petitioner to amend his habeas petition.”). Therefore, the Court recommends dismissing Mills’ motion to amend.

For essentially the same reasons, Mills’ motion to stay should be denied. As the Supreme Court stated in Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), district courts should not permit petitioners to invoke the stay- and-abeyance procedure unless they can show “good cause” for their failure to timely exhaust and that the claims are “potentially meritorious.” I note that Mills does not explain why he did not exhaust the three claims raised in his C.P.L. § 440.10(2)(c) before filing his federal habeas petition. As respondent points out, the C.P.L. § 440.10 court denied the motion to vacate because the grounds raised were apparent on the appellate record and could have been, but unjustifiably were not, raised on direct appeal. See N.Y.Crim. Proc. Law § 440.10(2)(c). Respondent argues that Mills necessarily cannot show good cause for exhausting them at an earlier time. The absence of “good cause” for the failure to exhaust is fatal to Mills’ ability to fulfill the Rhines standard. See Rhines, 544 U.S. at 277, 125 S.Ct. 1528. (“Because granting a stay effectively excuses a petitioner’s failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court.”).

In addition, as discussed above, the claims are subject to an unexcused procedural default under the adequate-and-independent state ground doctrine. Therefore, they are precluded from further federal habeas review. Because this Court may not review the merits of proeedurally defaulted claims, they cannot serve as “potentially meritorious” bases for habeas relief. Accordingly, the Court believes that it would not be an appropriate exercise of discretion to grant a stay in this case, and recommends dismissal of the stay motion with prejudice. See Rhines, 544 U.S. at 277-78, 125 S.Ct. 1528 (instructing that “even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless”).

III. General Legal Principles Applicable to § 2254 Habeas Petitions

It is well established that a federal habeas court does not sit to correct a misapplication of state law, unless such misapplication violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a) (“The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”) (emphasis supplied); see also Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

To obtain a writ of habeas corpus under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court’s adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

IV. Analysis of the Petition

A. Ground One: The Grand Jury should have been instructed concerning the defense of justification (self-defense).

Mills contends that the grand jury which indicted him should have been instructed by the prosecuting attorney regarding the defense of justification (self-defense), based upon a prior statement made by Turner to the police that Jaycox had displayed a gun just before the shooting. Turner did not testify that she saw Jaycox display gun, when she actually testified before the grand jury. See Petitioner’s Appellate Brief at 13, People’s Appellate Brief at 7 (Respondent’s Exhibit B). When Turner was questioned at the grand jury about that prior statement to police mentioning a gun, Turner admitted that she did not know whether what she saw was a gun, a belt buckle, or some other object. Resp’t Mem. at 3; T.511-12. Thus, during her sworn testimony at the grand jury, Turner renounced her prior statement to the police.

When this claim was raised on direct appeal, the Appellate Division rejected it as follows: “Contrary to defendant’s contention, the prosecutor was not required to instruct the Grand Jury on the defense of justification. The prosecutor must instruct the Grand Jury concerning only ‘those “complete” defenses which the evidence will support,’ and here the evidence before the Grand Jury did not support the defense of justification[.]” People v. Mills, 291 A.D.2d 844, 844, 737 N.Y.S.2d 890 (4th Dept.2002) (quotations and citations omitted).

Respondent argues that on federal habeas review, Mills’ complaint regarding the alleged error in the instructions to the grand jury is not cognizable. See Respondent’s Memorandum of Law (“Resp’t Mem.”) at 2-3. Respondent also argues that the claim is, in any event, without merit.

First, I agree with respondent that the claim is not a proper basis for habeas relief. As the Supreme Court explained in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), in the context of a federal grand jury proceeding, a petit jury’s subsequent verdict of guilty transforms any defect in the earlier grand jury proceedings into harmless error by establishing both probable cause to indict the defendant and the defendant’s guilt beyond a reasonable doubt of the charged crimes. Mechanik, 475 U.S. at 70, 106 S.Ct. 938. The Second Circuit has applied Mechanics reasoning in the context of state petitioners collaterally challenging their convictions under 28 U.S.C. § 2254. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir.1989). Noting that Mechanik held that federal grand jury rights are not cognizable on direct appeal when they have been rendered harmless by a petit jury’s guilty verdict, the Second Circuit held that analogous claims regarding a state grand jury proceeding are a fortiori foreclosed in a collateral attack on a state conviction brought in federal court. Lopez, 865 F.2d at 32. I agree with respondent that Ground One, which alleges defects in the grand jury proceeding, is not cognizable on federal habeas review. Accordingly, I recommend that it be dismissed on that basis.

B. Ground Two: The trial court erroneously declined to charge the jury on criminally negligent homicide and manslaughter.

When Mills asserted this claim on direct appeal, the Appellate Division held that “County Court properly denied defendant’s request to charge reckless manslaughter and criminally negligent homicide as lesser included offenses of depraved indifference murder. There is no reasonable view of the evidence that defendant committed the lesser offenses but not the greater[.]” People v. Mills, 291 A.D.2d at 845, 737 N.Y.S.2d 890 (citing, inter alia, People v. Jin Wai, 283 A.D.2d 326, 724 N.Y.S.2d 852 (1st Dept. 2001) (“The court properly declined to submit manslaughter in the second degree to the jury as a lesser included offense of depraved indifference murder. There was no reasonable view of the evidence, even when viewed most favorably to defendant, that defendant was merely reckless but did not evince a depraved indifference to human life and create a grave risk of death to bystanders when he fired his gun on a crowded street[.]”)).

Respondent argues that Mills’ claim regarding the failure to charge the jury on lesser included, non-capital offenses in this non-capital ease does not present a cognizable claim for this habeas proceeding. Resp’t Mem. at 4-6 (citing, inter alia, Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir.1996); Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)). In Beck v. Alabama, the Supreme Court held that in capital (death-penalty) cases, the trial judge must instruct the jury on lesser included, non-capital offenses, where the evidence presented so warrants. Id. at 627, 100 S.Ct. 2382. The failure to do so violates the Eighth Amendment and the Due Process clause. Id. The Supreme Court in Beck expressly declined to consider whether such a requirement would also apply in the non-capital context, however. Id. at 638 n. 14, 100 S.Ct. 2382; see also Gilmore v. Taylor, 508 U.S. 333, 361, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993) (Black-mun, J., dissenting) (“We left open the question whether Beck applies in the non-capital context.”) (citation omitted).

In the years following Beck, the Second Circuit likewise refrained from ruling on the issue. See Rice v. Hoke, 846 F.2d 160, 164 (2d Cir.1988); Knapp v. Leonardo, 46 F.3d 170, 179 (2d Cir.1995) (“Neither the Supreme Court nor this circuit has decided whether the failure to instruct a jury on lesser-included offenses in noncapital cases is a constitutional issue that may be considered on a habeas petition.”); Jones v. Speckard, 827 F.Supp. 139, 146 (W.D.N.Y.1993)(dictum), aff'd mem., 14 F.3d 592 (2d Cir.1993); Smithwick v. Walker, 758 F.Supp. 178, 187 (S.D.N.Y.1991), aff'd mem., 948 F.2d 1278 (2d Cir.1991).

In 1996, the Second Circuit confronted the issue again in Jones v. Hoffman. The Jones panel noted the Supreme Court’s clear unwillingness to decide whether the failure to charge lesser-included offenses in a non-capital case rises to the level of a constitutional claim. That, combined with the presence of a split among the circuit courts on the issue, led the Second Circuit to rule that the petitioner’s habeas claim in Jones would amount to the announcement of a new rule of constitutional interpretation, and thus his claim was precluded under the non-retroactivity doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Jones v. Hoffman, 86 F.3d at 48 (citing Turner v. Marshall, 63 F.3d 807, 819 (9th Cir.1995) (‘With the intercircuit split on whether the lack of a lesser included offense instruction in a noncapital case presents constitutional error, any finding of constitutional error would create a new rule, inapplicable to the present case under Teague,”)).

Because the Supreme Court has not decided whether there is a constitutional right to a lesser-included-offense charge in non-capital cases, Beck, 447 U.S. at 638 n. 14, 100 S.Ct. 2382, there is no “clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), on this issue. Thus, the Appellate Division’s ruling that the requested lesser included offenses were not warranted as a matter of New York state law cannot be said to have been “contrary to” “clearly established Federal law.” Similarly, the Appellate Division cannot be said to have unreasonably applied federal law on this issue. First, the Supreme Court has explicitly declined to rule on the precise question in Beck, and, second, and the Second Circuit has not suggested that Supreme Court precedent has implied established a principle that denial of lesser-included-offense instructions in non-capital cases may violate due process. White v. Fischer, No. 04 CV 5358(GBD)(FM), 2008 WL 4210478, at *10 (S.D.N.Y. Sept. 12, 2008) (denying habeas relief where petitioner convicted of first degree manslaughter claimed that the trial court’s erroneously refused to instruct the jury with regard to the lesser included offense of second degree manslaughter) (citing 28 U.S.C. § 2254(d)(1); Beck, 447 U.S. at 638 n. 14,100 S.Ct. 2382; Jones, 86 F.3d at 48). For the foregoing reasons, I recommend that Ground Two be dismissed.

C. Ground Three: The trial court erroneously instructed the jury regarding- the defense of justification.

Mills contends that the trial court deprived him of due process by improperly instructing the jury in response to a note received during jury deliberations regarding the justification defense. The trial court’s initial charge to the jury stated, in relevant part, as follows:

[A] person may lawfully use deadly physical force against another person when he reasonably believes that such use of deadly physical force is necessary to defend himself or a third person from what he reasonably believes to be the imminent use of deadly physical force against him.

The law further provides that even if you reasonably believe both of the above, a person may, nevertheless, not use defensive physical force if he knows he can with complete safety to himself or others avoid such use of deadly physical force by retreating. As with all factual issues for the jury, you should first review all of the evidence you find to be believable and find what, in fact, took place between this defendant and Nola Okorougo before and during their encounter. Only then can you decide what this defendant reasonably believed.

In deciding what this defendant reasonably believed, the law imposes upon the jury two tests. The first test is a subjective test, that is, what this defendant, not some other person, in fact, believed. To apply this test you should figuratively put yourself in the shoes of the defendant and consider how the situation appeared to him. You should consider, for example, what was said and done before and during the encounter, whether any weapon was possessed or used by any other person, any differences in physical size or attributes among the parties, any prior experiences of the same or similar nature experienced by the defendant, any prior knowledge this defendant had of the other’s reputation for violence, any prior specific assaults upon the defendant or upon others, or any other prior threats made against the defendant. All of these are subjective factors and should be considered by you in deciding what this defendant actually believed. Upon the basis of all of the foregoing you should then decide whether this defendant believed that his use of deadly physical force was necessary to defend himself or a third person, and that it was necessary to defend himself from the imminent, that is, immediate use of offensive deadly physical force against him. If the evidence satisfies you that the defendant so believed, then you should turn to the second test, and the second test is what a reasonable person would believe under the circumstances. In other words, what [sic] the defendant believed reasonable under all of the circumstances?

The second test requires you to consider whether the average person finding himself in the same situation as did the defendant would also conclude that defensive physical force was necessary to defend himself against the use of offensive deadly physical force. As I informed you earlier and do again, the burden is upon the People to prove to your satisfaction beyond a reasonable doubt that this defendant did not, in fact, act in self-defense, that he did not reasonably believe that the use of deadly physical force was necessary to defend himself or a third person against what he believed to be reasonably the use of deadly physical force against him or a third person and that the defendant, in fact, knew that he could have retreated with complete safety to himself or to others. If the People fail to so convince you beyond a reasonable doubt, then you must find the defendant acted in self-defense and find him not guilty of the crime of Murder in the 2nd degree.

T.659-61. There was no objection to the foregoing charge by trial counsel or the prosecutor.

Jury deliberations commenced at 10:27 а.m., and at about 12:05 p.m., the trial court received a request for a definition of self-defense. The trial court re-read its original instructions on justification, to which there was no objection by defense counsel or the prosecutor. See T.674-81.

At about 5:40 p.m., the jury sent out a note asking,

When you, the judge, were talking about ‘self Defence [sic]’ did you say that the need to feel threatened or in possible life threatening situation must be determined at that moment and not prior acts or situations which came days or weeks before.

T.685. The note was marked as Court Exhibit 6. It is not clear from the trial transcript whether the trial judge consulted with the attorneys before answering this question in the following manner:

You’re asking essentially does the need to feel threatened or in a life threatening situation need to be at the moment? Is that the question? Meaning the moment when deadly physical force is used? All right the answer is yes, okay. Basically, in order to justify the use of deadly physical force, the defendant must reasonably believe three things. First, that such deadly physical force is necessary to defendant himself from the imminent use of deadly physical force against him or a third person and that he cannot with complete safety withdraw. So, sure, you take into consideration events that may have happened in the past, but the test for whether or not a person is justified in using deadly physical force is whether he is threatened at the time he uses the deadly physical force with the immediate use of deadly physical force against him.

Does that answer the question? Okay. T.685-86 (emphasis supplied). There was no objection to the trial court’s paraphrasing, set out in italics, of the jury’s note by either trial counsel or the prosecutor or the jury. I note that it would have been helpful if there was some indication in the record of the jury’s response to the judge’s query, “Is that the question?” However, reading the above in its entirety, the reasonable inference is that the jury responded in a non-verbal way (e.g., by nodding in assent) to the judge’s paraphrasing of the contents of the note.

Then, Juror Number 5 asked the trial court to repeat the supplemental instruction (quoted above), and the court responded as follows:

The Court: You’re asking in your question essentially whether or not the person who uses deadly physical force needs to feel threatened at the time he uses the deadly physical force. I don’t know how I can make it any clearer. For example, if you thought somebody was going to kill you three weeks ago, you can’t today decide that you’re going to kill that person because you were threatened three weeks ago. Okay, the use of deadly physical force is justified only when the person reasonably believes that deadly physical force is about to be used against him and that the use of that force is imminent. Somebody is going to kill him or attempt to kill him at that time.

Juror No. 5: At that split second?

The Court: At the time he uses the deadly physical force.

Juror No. 5: Okay.

The Court: And that’s the only way you’re justified in using physical force, when you perceive, when you reasonably believe that someone is about to use deadly physical force against you or a person, a third person, and you reasonably believe that that’s about to happen and that it’s necessary for you to use the deadly physical force to defend yourself and you can’t retreat. ... I mean, obviously if someone is about — -you see someone about to use deadly physical force, if you somehow detect it, that doesn’t mean you can kill him; or, if you are protected, or if there is some way to retreat, it has to be that a person reasonably believes that a person is going to use deadly physical force at that time, not something that he perceived in the past.

T.686-87 (emphases supplied). It appears from Juror No. 5’s questions that the jury was focused on the “imminence” requirement of the jury charge. I note that there was no objection by defense counsel or the prosecutor to the trial court’s instructions in response to the jury’s written query and