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June 30, 2000


The opinion of the court was delivered by: Chin, District Judge.


Pro se petitioner Rhagi El petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his April 3, 1996 conviction in the Supreme Court of the State of New York, New York County, for criminal possession of a weapon in the second degree (N.Y.Penal L. § 265.03), criminal possession in the third degree (N.Y.Penal L. § 265.02(4)), assault in the first degree (N.Y.Penal L. § 120.10(3)), and assault in the second degree (N.Y.Penal L. § 120.05(4)). For the reasons set forth herein, the petition is dismissed.


A. The Shooting

The evidence adduced at El's trial*fn1 established that shortly after 7:00 p.m. on January 3, 1995, Thomas McCray, Jr., Ronnie Terry, George Townsend, and Keith Warren had gathered on the corner of 149th Street and Amsterdam Avenue. Several others were at the corner, including a man later identified as El. Gunshots broke out. McCray, who had his back turned toward El, heard several gunshots. Terry also heard a shot from somewhere behind him. Warren saw El holding a weapon and heard gunshots.

McCray, Terry, and Warren immediately took flight. McCray was hit by a bullet in his left calf, and was shot again in the other leg as he attempted to flee. Realizing that McCray needed assistance, Terry stopped to help McCray into a building while Warren fled the scene.

Police officers Carlos Morel and Anderson Moran were patrolling the area in a police car. The officers were stopped at a traffic light at the intersection of Amsterdam Avenue and 150th Street at approximately 7:30 p.m. when they heard gunshots and saw flashes of light coming from the corner of 149th Street and Amsterdam Avenue. As they approached the corner, Morel and Moran noticed that El remained in the area as the others ran away. The officers drove toward El, who took flight at the officers' approach.

B. State Court Proceedings

1. The Proceedings in the Trial Court

El waived his right to be represented by counsel in his criminal trial in the Supreme Court, New York County, choosing to defend himself pro se. El's previously assigned counsel was appointed by the court to an advisory role. Following a jury trial, El was convicted on two counts of criminal possession of a weapon and two counts of assault.

After the verdict was taken, the trial court (Figueroa, J.) set a sentencing date and remanded the defendant. The court then made the following comments to the defendant:

I'll speak to you quite frankly, that I [don't] know the circumstances or what was your mentality at the time that these alleged acts were perpetrated. Much is going to depend, as far as your sentence is concerned, on how you relate to the Probation Department when they interview you.
I myself, being perplexed as I am, would like some explanation of the surrounding circumstances of your firing the weapon. If I don't get what I consider [a] worthy explanation, a sincere explanation, you are going to feel it on sentencing.
Conversely, if you could shed some light on what happened and give me some sort of explanation — not explanation, but an understanding of the situation, I will also take that into account.
In other words, be sincere with the Probation Department. Because if you don't. I'll tell you right now, it's going to cost you. I want you to be truthful.

(Resp.Ex. D, Tr. at 877-78).

In response to the court's comments, El sought to raise a concern about the impact his statements might have on his appeal. The court told him that his chances of prevailing on appeal were "very dim":

THE DEFENDANT: Isn't that what — wouldn't that be costly to my appeal, admitting —
THE COURT: Yes. But now you have been convicted of firing that weapon indiscriminately by this jury, after what I consider a fair trial. Don't count too much on your appeal, because meanwhile you'll be doing time.
Think of the [here] and now, especially at least in my view, and you can discuss this with your lawyer, when you[r] appeal is really a very dim prospect for you.
There is no doubt in this jury's mind, as there is no doubt in anyone else's mind, that you fired that weapon indiscriminately and that's, in effect, what you are convicted of.
You weren't convicted of the top count. And you definitely possessed a weapon.
So, I don't see how you could get around those facts on appeal.
So, you want to concentrate on the appeal, do so. But I think I put my position on the record. You could consider my position or not consider it.
But right now I am really perplexed about what happened here.
If I remain perplexed, it's going to cost you. I am not asking you — saying you have to give me an explanation, but I am perplexed and when I am perplexed, I resolve all doubt against the accused. It's simple. You don't have to do anything.

All right. You have anything else you ...

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