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June 8, 2000


The opinion of the court was delivered by: Foschio, United States Magistrate Judge.

        DECISION and ORDER


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[1]) (McKinney 1998)*fn1 (Count I), Assault in the First Degree (N.Y.Penal Law § 120.10[1]) (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[1] and 20.00) (Count IV), and Aiding and Abetting in Assault in the First Degree (N.Y.Penal Law §§ 120.10[1] 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[1] and [2]) (Counts I and II), Assault in the First Degree (N.Y.Penal Law § 120.10[3]) (Count III), and Criminal Possession of a Weapon in the Third Degree (N.Y.Penal Law § 265.02[1]) (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) ("Petitioner's Reply").

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 Stone's trial.

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. 627-28).

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. 359).

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. 687).

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.


Stone asserts three grounds for habeas relief including (1) that during jury selection, Judge Rogowski erroneously ruled on Stone's challenges for cause and also held an in camera conference with a prospective juror without either Stone or his counsel present, (2) prosecutorial misconduct based on statements made during summation, and (3) insufficient evidence to support the intentional murder conviction. Petition at 7-8.

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 194.

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, 1447 (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. ยง 2254(b)(2). Accordingly, in the interest of judicial economy the court will review ...

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