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STONE v. STINSON
June 8, 2000
EARL STONE, PETITIONER,
JAMES STINSON, SUPERINTENDENT, RESPONDENT.
The opinion of the court was delivered by: Foschio, United States Magistrate Judge.
On September 23, 1998, the parties to this action requesting
habeas corpus relief under 328 U.S.C. § 2254 consented to proceed
before the undersigned.
Petitioner was charged with a total of nine criminal counts in
two separate indictments returned by Erie County Grand Juries.
Specifically, Indictment No. 94-1370-001, returned on June 3,
1994, charges Petitioner with Attempted Murder in the Second
Degree (N.Y.Penal Law §§ 110.00 and 125.25) (McKinney
1998)*fn1 (Count I), Assault in the First Degree (N.Y.Penal Law
§ 120.10) (Count II), Reckless Endangerment in the First
Degree (N.Y.Penal Law § 120.25) (Count III), Aiding and Abetting
in Attempted Murder in the Second Degree (N.Y.Penal Law §§
110.00, 125.25 and 20.00) (Count IV), and Aiding and Abetting
in Assault in the First Degree (N.Y.Penal Law §§ 120.10 and
20.00) (Count V), in connection
with shootings that occurred on March 13, 1994 and March 24, 1994
in Buffalo, New York. Indictment No. 94-0719-T01, returned August
11, 1994, charges Petitioner with two counts of Murder in the
Second Degree (N.Y.Penal Law § 125.25 and ) (Counts I and
II), Assault in the First Degree (N.Y.Penal Law § 120.10)
(Count III), and Criminal Possession of a Weapon in the Third
Degree (N.Y.Penal Law § 265.02) (Count IV). Essentially,
Petitioner was charged with regard to three separate shooting
incidents that occurred over a thirty-two day period in 1994 in
which four separate people were shot, including a seventeen year
old who died as a result. On December 8, 1994, the two
Indictments were consolidated for trial.
Following arraignment and disposition of pre-trial motions,
jury selection for Petitioner's trial commenced on November 13,
1995 and concluded on November 17, 1995 when twelve jurors and
two alternates were seated. Erie County Court Judge John V.
Rogowski presided over pre-trial matters, jury selection and
trial. The five day trial commenced on November 17, 1995,
continued on November 22, 27 and 28, and concluded on November
29, 1995, when the jury found Petitioner guilty on eight counts.
On January 11, 1996, Petitioner was sentenced as a second felony
offender to concurrent and consecutive indeterminate sentences
ranging from 10 years to life.
On May 30, 1997, the Appellate Division, New York Supreme
Court, Fourth Department, affirmed Petitioner's conviction.
People v. Stone, 239 A.D.2d 872, 659 N.Y.S.2d 674 (4th Dep't
1997). Leave to appeal to the New York Court of Appeals was
denied on September 30, 1997. People v. Stone, 90 N.Y.2d 943,
664 N.Y.S.2d 762, 687 N.E.2d 659 (1997).
On June 3, 1998, Petitioner filed the instant petition seeking
federal habeas relief pursuant to 28 U.S.C. § 2254 on three
grounds alleging deprivation of his constitutional rights to due
process and equal protection at his trial including (1) he was
not permitted to attend an in camera conference regarding
whether a prospective juror should be excused; (2) prosecutorial
misconduct; and (3) insufficient trial evidence to support the
conviction. Respondent's answer to the petition (Docket Item No.
3) and a Memorandum of Law in support (Docket Item No. 4)
("Respondent's Memorandum") were filed on September 3, 1998. On
November 18, 1998, Petitioner filed a Reply to the answer and in
further support of his petition. (Docket Item No. 10)
Based on the following, the Petition is DISMISSED.
Petitioner, Earl Stone ("Stone"), was arrested and charged in
connection with his participation in three separate shooting
incidents in the City of Buffalo. The first incident occurred in
the evening of March 13, 1994 when Stone and Jerry Knightner, who
had argued earlier that day, re-encountered each other when
Knightner followed Stone's truck to a house located at 87 Stevens
Street, Buffalo. (T. 66-68).*fn2 After exiting their respective
vehicles, Stone and Knightner resumed their argument. (T. 67-68,
175-76). Knightner testified he believed the argument was
finished when Stone shook his hand and tapped Knightner on the
back. (T. 68, 71, 176). Knightner then walked Stone to Stone's
truck and spoke with someone inside. (T. 68, 176). Stone,
however, did not enter the truck but, rather, went into the house
at 87 Stevens Street. (T. 68, 71). Three to four minutes passed
and Stone emerged from the house carrying a dark-colored plastic
garbage bag. (T. 71, 72, 177). Knightner inquired whether Stone
intended to shoot him and Stone advised Knightner to leave. (T.
72, 177). Knightner then returned to his car which was parked
next to Stone's truck and entered
it. (T. 72). Stone walked into the street. (T. 72). Before
Knightner had shut his car door, gunshots fired by Stone
shattered the rear window of Knightner's car and struck Knightner
in his right arm. (T. 72-73). Realizing he had been shot,
Knightner drove away to seek help, and Stone followed in his
truck. (T. 73-74). Knightner pulled over in front of his
grandparents' house but before getting out of his car, he noticed
through the rear view mirror that Stone's truck was behind him.
(T. 74-75). Knightner then drove toward the Precinct 12 police
station on Genesee Street. (T. 75-77). En route, Knightner
observed several more shots fired toward his car from a gun
sticking out the driver's side window of Stone's truck. (T.
75-76). Upon reaching the police station, Knightner ran inside
for help. (T. 79-80). Knightner was taken by ambulance from the
police station to Erie County Medical Center ("ECMC") where his
gun shot wound was cleaned and treated. (T. 80).
Deon Steward, an accomplice to the second shooting incident
which occurred on March 24, 1994, testified at Stone's trial.
Steward testified that he and Stone were riding around in the
vicinity of Genesee Street and Goodyear Avenue in the early
evening hours of March 24, 1994, and then proceeded to the
intersection of Grider and Northland Streets where they
encountered a Cadillac. (T. 248-49, 250-51, 253-54, 255-56).
According to Steward, Stone instructed Steward to drive to 87
Stevens Street so that Stone could get a gun, which Steward
interpreted as indicative that Stone held a grudge against the
driver of the Cadillac, Marlon Clay. (T. 256). Upon arriving at
that address, Stone entered the house and returned to Steward's
vehicle a few minutes later carrying a rifle in a green garbage
bag. (T. 256-58). The two then returned to Grider and Northland
Streets but, as the Cadillac was no longer there, continued
driving until Steward spotted Clay at a pay telephone at the
corner of Genesee and Koons Streets. (T. 258, 260-62). As Steward
crossed the intersection, Stone told him to "drive slow." (T.
263). Stone, seated in the front passenger seat of Steward's
vehicle, then pulled out the rifle, told Steward to roll down the
driver's side window, placed the rifle across the steering wheel
and fired more than five gunshots at Clay through the open
driver's side window. (T. 263-64).
Clay sustained a gunshot wound in his left buttock and the
bullet penetrated into his abdomen. (T. 311-16, 540). Clay was
brought to ECMC where he underwent surgery. (T. 311-16, 540). A
substantial amount of blood leaked into Clay's abdomen and his
injuries were considered life-threatening. (T. 312-316). Clay's
testimony at Stone's trial was largely consistent with Steward's
testimony. (T. 531-59, 563-74).
After the shooting, Steward returned to 87 Stevens Street and
Stone took the rifle back into the house. (T. 265-66). Stone and
Steward then continued driving around until Steward was pulled
over by the police for questioning with regard to Clay's
shooting. (T. 266-68). Steward was charged with Stone under
Indictment No. 94-0719-T01 as an aider and abettor to Attempted
Murder in the Second Degree and Assault in the First Degree with
regard to Clay's shooting. However, Steward eventually accepted a
plea bargain wherein he testified on behalf of the prosecution at
Jerry Knightner, the victim of the first shooting on March 13,
1994, also witnessed the third shooting which occurred on April
14, 1994, and testified as to it at Stone's trial. According to
Knightner, in the afternoon of April 14, 1994, he observed Stone
arguing with Nichole Branch on Goodyear Avenue and heard Stone
threaten to kill Branch. (T. 84-86, 88). Knightner testified that
he saw Tremaine Jacobs, otherwise known as "Teeter," driving a
dark blue Ford Bronco, pull up to Stone and Branch and begin
conversing with Branch. (T. 88). Teeter drove away toward Genesee
Street and Stone then
walked across the street to his own truck. (T. 89-90). According
to Knightner, Teeter returned to Goodyear Avenue a short while
later with Clarence Jackson occupying the front passenger seat
and Rayshawn Washington in the rear seat of Teeter's vehicle. (T.
94-95). Teeter drove up Goodyear back toward the area where Stone
and Branch had been arguing, then turned his vehicle around and
drove back down Goodyear toward McKibbon Street. (T. 96-99). As
Teeter passed Stone's truck, Stone, who was standing next to the
passenger side of his vehicle holding a gun resembling an AK-47
or an AR-15, opened fire on Teeter's vehicle. (T. 99-102).
Knightner recalled that between ten and fifteen shots fired. (T.
101). Knightner's testimony regarding the third shooting incident
was corroborated by Clarence Jackson who also testified at the
trial. (T. 595-601).
The April 14, 1994 shooting was also witnessed by Kelvin
Bryant, who testified that he was "at the corner of Three Aces
Lounge" when he saw Stone drive down Goodyear Avenue and stop his
truck in the middle of the street. (T. 392-93). Bryant saw Stone
fire shots from his vehicle. (T. 393-94). Bryant then started
back toward his house at 510 Goodyear Avenue and, upon reaching
it, stood outside on the front porch. (T. 394-96). About two
minutes later, Stone arrived at Bryant's house and parked his
truck in the front yard. (T. 395-97). After exiting, Stone
removed a weapon from the back of the vehicle and instructed
Bryant to block him and follow him into the house. (T. 397). Once
inside Bryant's house, Stone gave Bryant the weapon which
appeared to be a loaded "black and brown stock AK" with a banana
clip. (T. 398). Bryant put the weapon in his basement. (T. 398).
Bryant's girlfriend, Teresa Dillon, testified that on April 14,
1994, Stone was present in Bryant's house with a "big gun" which
Stone left behind. (T. 450).
Meanwhile, Teeter drove from the scene of the shooting to the
ECMC to seek medical assistance for his passengers who had both
been struck. (T. 598-601). Jackson testified that he was shot in
the lower back. (T. 600-602). The bullet penetrated upward
through Jackson's abdomen and into his chest, causing internal
bleeding and injuries including grazing the tip of Jackson's
heart before lodging in the wall of the pericardial sac
surrounding Jackson's heart. (T. 317-18). Jackson described the
shooter as a black male. (T. 603). Jackson testified that while
Teeter drove them to ECMC, Jackson turned to look at Washington
who was lying on the back seat of Teeter's vehicle, bleeding
through his nose and mouth. (T. 604).
Washington died as a result of his gunshot wounds. (T. 625).
Erie County Chief Medical Examiner Dr. Justin Uku testified that
the results of an autopsy he performed on Washington indicated
that the bullet entered Washington's body through his left armpit
and lacerated two large blood vessels which supplied blood
between the heart and left arm, and fragmented upon hitting the
left shoulder bone. (T. 623-26). The wound resulted in
significant internal bleeding, causing Washington's liver and
kidneys to shut down and, ultimately, Washington's death. (T.
In the spring of 1994, Stone moved from Buffalo to Virginia
where he met and began a relationship with Shamika Walton who
testified at Stone's trial. (T. 461-65). Walton testified that
Stone admitted to her that he had shot several people in Buffalo,
wounding one of his victims in the arm, paralyzing another and
killing a third. (T. 463-64). According to Walton, she became
frightened upon learning from a friend that law enforcement
officers were looking for Stone in connection with the shootings
and called the Newport, Virginia police and provided a lead as to
Stone's whereabouts. (T. 465-66). In early July 1994, Stone was
arrested in Virginia and returned to Buffalo where he was
indicted for the March 13, March 24 and April 14,
1994 shootings. (T. 461-64). No weapons were ever recovered. (T.
Stone was represented at trial by Mary T. Kosmerl, Esq.
Assistant Erie County District Attorneys Lawrence M. Schwegler
and Gary W. Hackbush prosecuted the case. Jury selection
commenced on November 13, 1995 and concluded on November 17,
1995. On November 17, 1995, the court, in response to a request
by Stephen Bennett, a prospective juror, met in camera outside
the presence of counsel or Stone. (VT.473, 476).*fn3 Bennett
informed the court that at 8:00 P.M. the previous evening, he had
received a threatening telephone call from an acquaintance
Bennett believed was incarcerated at the Erie County Holding
Center. (VT.476). Bennett told Judge Rogowski that the caller
advised Bennett to make sure he was selected for the jury and
that Stone was acquitted. (VT.478). Bennett told the caller that
he did not want to listen to threats and hung up the telephone.
(VT. 478). Bennett was afraid to disclose the caller's identity
to the judge. (VT.479-80). Bennett further indicated that he
believed the caller placed the telephone at Stone's direction,
and that Bennett may have had Stone as a student at the
Educational Opportunity Center in Buffalo. (T. 479). Judge
Rogowski arranged for Bennett to speak with someone from the Erie
County District Attorney's office, in confidence, and outside the
presence of both Stone and his attorney. (VT.478).
The trial commenced on November 17, 1995. Twenty-one
prosecution witnesses, including the three surviving shooting
victims and Stone's co-defendant with regard to the shooting of
Marlon Clay, testified and one witness, Assistant District
Attorney Gerald Schaffer who presented the first two shootings to
the grand jury that returned the first indictment, testified on
Stone's behalf. (T. 672-73). Schaffer testified on direct
examination that although Jerry Knightner was a complainant in
the case Schaffer presented to the grand jury in April 1994,
Knightner was initially unwilling to identify Stone to the grand
jury as the person who shot him on March 13, 1994. (T. 674-78).
After Knightner was warned that he could be prosecuted for
perjury, Knightner recanted his testimony and identified Stone as
his shooter before the grand jury. (T. 679-83). On
cross-examination, Schaffer testified that his threat to
prosecute Knightner for perjury was based on Knightner's prior
identification of Stone as his shooter in both a sworn deposition
prepared shortly after the shooting and a later conversation with
Schaffer. (T. 686). Knightner subsequently recanted his testimony
and identified Stone as the shooter before the grand jury,
explaining that death threats received by his family members had
caused him to pretend he was unable to identify the shooter. (T.
The jury found Stone guilty on eight of the nine counts.*fn4
(T. 885-89). Stone timely appealed his conviction to New York
Supreme Court, Appellate Division, Fourth Department. On May 30,
1997, the Appellate Division affirmed the conviction. People v.
Stone, 239 A.D.2d 872, 659 N.Y.S.2d 674 (4th Dep't 1997). Leave
to appeal to the Court of Appeals was denied on September 30,
1997. People v. Stone, 90 N.Y.2d 943, 664 N.Y.S.2d 762,
687 N.E.2d 659 (1997). This action followed.
In reviewing a state prisoner's petition pursuant to
28 U.S.C. § 2254, a district court makes an independent determination as to
whether the petitioner is in custody in violation of his rights
under the Constitution or any laws or treaties of the United
States. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991), reh'g denied, 501 U.S. 1277, 112 S.Ct.
27, 115 L.Ed.2d 1109 (1991). A state petitioner's federal habeas
corpus petition may be dismissed if the petitioner has not
exhausted available state remedies as to any of his federal
claims, Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d
379 (1982). Under the Antiterrorism and Effective Death Penalty
Act of 1996 ("the AEDPA"), a federal court is permitted to deny a
state prisoner's habeas corpus petition on the merits of the
claims for which the prisoner has exhausted available state
remedies, even though the petition contains unexhausted claims.
28 U.S.C. § 2254(b)(2). However, failure to timely exhaust state
remedies will result in procedural default of the claims.
Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993), cert.
denied, 510 U.S. 1078, 114 S.Ct. 895, 127 L.Ed.2d 87 (1994);
Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir. 2000).
For a federal habeas claim to be exhausted, it must be
presented to the state appellate court in the same factual and
legal context in which it appears in the federal habeas petition.
Daye v. Attorney General of the State of New York,
696 F.2d 186, 191 (2d Cir. 1982), cert. denied, 464 U.S. 1048, 104 S.Ct.
723, 79 L.Ed.2d 184 (1984). In order to be subject to federal
collateral review, a habeas claim must be the "same claim" as
that raised in the state courts. Velasquez v. Senkowski, 1991
WL 159054 (E.D.N.Y. 1991). To establish that a federal claim was
raised in state court, a petitioner must, in the state courts,
(1) have relied on federal case law employing federal
constitutional analysis; (2) relied on factually similar state
cases employing federal constitutional analysis; (3) asserted the
claim "in terms so particular as to call to mind a specific right
protected by the Constitution"; or (4) alleged a set of facts
well within ordinary constitutional litigation. Daye, supra, at
In this case, the record indicates that all the grounds on
which Stone seeks habeas relief were, to some extent, presented
to the state court on direct review. Specifically, in his brief
to the Appellate Division on his direct appeal, Stone's second
claim challenged several jury selection rulings including
challenges for cause made by Stone as to prospective jurors Kelly
Berst and Robert Harrington, Petitioner's Appellate Brief at
16-21, as well as the an in camera proceeding at which neither
Stone nor his counsel were present. Id. at 22-31. However, in
his application for leave to appeal to the Court of Appeals,
Stone refers only to the for cause challenge as to Harrington and
the in camera proceeding. Petitioner's Application for Leave to
Appeal to the Court of Appeals, at 1. Accordingly, Stone's first
ground for habeas relief is not exhausted for purposes of federal
habeas jurisdiction insofar as it challenges the denial of his
for cause challenge as to Berst.
Moreover, Stone is precluded from seeking further direct review
by the Court of Appeals on this claim and his failure to exhaust
it on direct review also forecloses him from seeking collateral
relief from the New York courts. Strogov v. Attorney General of
the State of New York, 191 F.3d 188, 193 (2d Cir. 1999) (citing
N YRules of Court, Court of Appeals, § 500.10(a) (McKinney
1999), and N.Y.Crim.Proc.Law § 440.10(2)(c) (McKinney 1994)).
Accordingly, Stone has procedurally defaulted on this claim.
Jordan, supra, at 198-99; Washington v. James, 996 F.2d 1442,
(2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S.Ct. 895, 127
L.Ed.2d 87 (1994). Absent a showing of cause and prejudice for a
default, Stone is barred from raising this claim on federal
habeas review. Murray v. Carrier, 477 U.S. 478, 490-91, 106
S.Ct. 2639, 91 L.Ed.2d 397 (1986); Carter v. United States,
150 F.3d 202, 205 (2d Cir. 1998).
For purposes of testing the availability of federal habeas
jurisdiction, "[c]ause" is established by showing "some objective
factor external to the defense [which] impeded counsel's efforts
to comply with the State's procedural rule." Murray v. Carrier,
477 U.S. at 488, 106 S.Ct. 2639. Included among such factors are
constitutionally ineffective assistance of counsel, interference
by government officials rendering compliance with the state
procedural rule impracticable, or situations in which the factual
and legal basis for the claim was not reasonably available to
counsel at the time of default. Murray, supra, at 488, 106
S.Ct. 2639. "`Prejudice' is established by showing that the
claimed error worked to [the petitioner's] actual and substantial
disadvantage." United States v. Frady, 456 U.S. 152, 170, 102
S.Ct. 1584, 71 L.Ed.2d 816 (1982). A fundamental miscarriage of
justice is established by showing that the alleged constitutional
violation "has probably resulted in the conviction of one who is
actually innocent" of the crime for which he has been convicted.
Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. 2639.
Stone asserts no reasons for failing to present the defaulted
portion of his first ground in state court. As such, Stone has
failed to demonstrate good cause for the procedural default and
this court, therefore, lacks jurisdiction to consider it.
The "mixed" nature of Stone's petition, presenting both
exhausted and unexhausted claims, does not, however, require
dismissal on that ground. 28 U.S.C. § 2254(b)(2). Accordingly, in
the interest of judicial economy the court will review ...