Fred PARKER, Petitioner-Appellant, v. George B. DUNCAN, Superintendent of Great Meadow Correctional Facility, Respondent-Appellee, 255 F. App'x 565

SUMMARY ORDER Petitioner-Appellant Fred Parker appeals from an October 15, 2008 order of the United States District Court for the Eastern District of New York (Gershon, J.) denying his petition for a writ of habeas corpus. We assume the parties’ familiarity with the facts and procedural history of the case. Appellant contends for the first time in this appeal that the evidence presented in his state murder trial was insufficient to convict him of depraved-indifference murder because it tended to show only intentional murder.

Even if we assume that this issue, not having been raised in the state courts or in the district court, may properly be heard here, this claim is without merit. “[Wjhere both intentional and depraved indifference murder were charged in one-on-one shootings or knifings, these counts were submitted to the jury for it to sort out the defendant’s state of mind unless there was absolutely no evidence whatsoever that the defendant might have acted unintentionally.” Policano v. Herbert, 7 N.Y.3d 588, 600-01, 825 N.Y.S.2d 678, 859 N.E.2d 484 (2006); see also Policano v.

Herbert, 507 F.3d 111 (2d Cir.2007) (applying the New York Court of Appeals’ Policano decision to instruct the district court to deny a habeas petition in a case very similar to this one). Here, Appellant’s own confession, in which he described firing his gun while running away in fear, constituted some evidence that he may have acted unintentionally, and thus suffices for us to AFFIRM the judgment of the district court.