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SHANNON v. ARTUZ

November 24, 1997

KENNETH SHANNON, Petitioner, against CHRISTOPHER ARTUZ, as Superintendent of Greenhaven Correctional Facility of the State of New York, Respondent.


The opinion of the court was delivered by: KNAPP

 WHITMAN KNAPP, SENIOR DISTRICT JUDGE

 Before us is a habeas corpus petition brought by Kenneth Shannon ("petitioner"), pursuant to 28 U.S.C. 2254, to vacate his state conviction for assisting one Billie Bokun in the shooting and killing one Michael Holly. In support of his requested relief, petitioner asserts that various trial court evidentiary rulings denied him his constitutional right to a fair trial. For the reasons that follow, the petition is denied.

 At trial, it was established that petitioner belonged to the "Westies" organized crime group which was formed in the mid-1960's and based in the Hell's Kitchen section of Manhattan. The group's activities included loansharking, narcotics dealing, extorting local labor unions and controlling New York's West Side piers. See, e.g., U.S. v. Coonan (2d Cir. 1991) 938 F.2d 1553, 1556. Furthermore, the gang "routinely engaged in extreme acts of violence and effectively cultivated a reputation for barbarism." Id. For example, gang members murdered and dismembered a loansharking customer who had fallen behind in his payments. Id. In another incident a loansharking customer was pistol-whipped for missing his payments and for making disparaging remarks about the Westies. Id. at 1557. Over time, the gang enhanced its power by entering into an alliance with the Gambino Organized Crime Family. Id. at 1556.

 By the mid-1970's, Francis "Mickey" Featherstone had become second-in-command of the Westies. See, e.g., Coonan, 938 F.2d at 1556. On March 25, 1977, John Bokun shot Michael Holly in the chest following an argument. When a police officer attempted to intercede, Bokun fired shots at the officer. The officer then shot and killed John Bokun. As a result, the Westies held Holly responsible for the death of John Bokun and plotted to avenge the killing. Id. at 1558. On April 25, 1985, Michael Holly was shot and killed.

 Featherstone was originally convicted of murdering Holly. He later entered into a cooperation agreement with law enforcement authorities, under which he agreed to plead guilty to a federal racketeering offense; in return the authorities promised to investigate Featherstone's claim of innocence.

 During that investigation, tape-recorded conversations were uncovered in which Billie Bokun, a Westie, acknowledged shooting Holly and petitioner stated that he had driven Bokun to and from the scene of the shooting. As a result of this evidence, Bokun and petitioner were charged as co-defendants for the murder of Holly and Featherstone's conviction was set aside.

 At petitioner's trial, the state suggested that Michael Holly's murder was a gang related incident motivated by revenge for John Bokun's death. Additionally, the state explained that Holly had gained a reputation for defying the gang and submitted that the murder was a public assertion of dominance by the Westies to deter others from resisting.

 In support of these assertions, the state put forth evidence of the Westies' other illegal activities including loansharking and narcotics dealing in order to show the existence and nature of the gang. Also, the tape-recorded statement by petitioner was admitted, as well as, a part of Billie Bokun's plea allocution indicating that there had been a getaway driver, although the allocution did not reveal the identity of the driver. Testimony that Featherstone had told Bokun to confess to the murder and that he (Featherstone) would then arrange to get Bokun out of prison was also admitted at trial. However, Featherstone's statement that he would "come out and find out what really happened" was excluded.

 On July 28, 1989, petitioner was convicted of murder in the second degree for his participation in Holly's murder. He was thereafter sentenced to eighteen years in prison. His conviction was affirmed by the Appellate Division, First Judicial Department on September 22, 1994 and leave to appeal to the Court of Appeals was denied on January 9, 1995. Petitioner now seeks habeas corpus relief under 28 U.S.C. 2254.

 DISCUSSION

 Petitioner claims that habeas corpus relief should be granted because the trial court: (1) introduced prejudicial, inflammatory evidence of other crimes which were unrelated to the crime charged; (2) sua sponte excluded testimony which could have resulted in evidence that an admission-against-interest of the petitioner was feigned and borne of fear; and (3) erroneously allowed the introduction of Billie Bokun's plea allocution in violation of the petitioner's constitutional right to confront and cross-examine witnesses.


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