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July 9, 2004.

GLENN S. GOORD, Commissioner, New York State Department of Correctional Services, Respondent.

The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge



Petitioner, Thearthur Grimes ("Grimes"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).


  Basis for the Conviction

  The conviction under attack in the present habeas petition stems from a double murder that occurred at 2½ Finch Street in the City of Rochester on December 28, 1993. Grimes was indicted on charges of second degree murder, attempted murder, and first degree assaulted based on his involvement in the murders. He was convicted of all counts in the indictment following a jury trial.

  The Motive Behind the Finch Street Murders

  On December 23, 1993, Darryl Johnson ("Johnson") threw Jerold Usher ("Usher") out of his house at 71 Locust Street in the City of Rochester after learning that Usher intended to use the location as a "gate," in other words, a drug house. Johnson lived at the Locust Street address with his niece, Myra Woods, and her six children. Following his expulsion, Usher returned to the house and fatally shot Johnson ("the Locust Street murder"). Usher then fled to the apartment of David Crutcher ("Crutcher"). Crutcher's apartment, located at 250 Birr Street, was where Usher's older brother Anthony McGee ("McGee"), Timothy Muldrow ("Muldrow"), and Raymond Stubbs ("Stubbs") operated another "gate." Trial Transcript ("Trial Tr.") at 521, 518. Usher burst into the house and immediately ran to the bathroom and began vomiting. After learning what Usher had done, McGee, Muldrow, Stubbs and Grimes, who was in the house at the time of Usher's arrival, discussed the need to eliminate any witnesses to the Locust Street murder. Id. at 528-30.

  On December 28, 1993, Stubbs showed Crutcher four guns in a bedroom at the Birr Street apartment and said, "Check this out, this [is the] artillery we're going to use tonight." Id. at 542. Crutcher, who was under the impression that they were going to kidnap the witnesses to the Locust Street murder, had procured, at McGee's request, a stolen red Ford Probe for the group to use as transportation. Id. at 533-34. Armed with the guns that Stubbs had shown Crutcher earlier, Grimes, McGee, Stubbs and Muldrow left the apartment later that night and drove away in the stolen Ford Probe. Id. at 552, 559. Crutcher and a man only identified as "Smiley" remained at the apartment with Stubbs's girlfriend and her infant son.

  The Finch Street Murders

  Meanwhile, at 2½ Finch Street in Rochester, Deborah Ibezime ("Ibezime") was at home with her boyfriend Darryl Gross ("Gross"), and her two sons, Jerry Brock ("Brock"), aged 14-years old, and Darryl Gross, Jr., an infant. Shortly after midnight, a knock was heard at the front door. When Brock opened the door, Stubbs, whom he knew by the street name of "Raider," entered the house and began speaking with Ibezime, who was lying on a sofa in the living room. Id. at 344-45. Brock overheard Stubbs and Ibezime talking about a murder that had occurred on Locust Street. Stubbs apparently asked Ibezime who was present at the time of the shooting. Id. at 346. After Ibezime indicated that she was present during the shooting, Stubbs left the house, passing Janice Cartledge ("Cartledge") who had come over to 2½ Finch Street to visit her friend, Ibezime. Id. at 399. About two minutes later, Stubbs returned to the house. When Gross opened the front door, Stubbs claimed that he had forgotten his keys. Id. at 401. Suspicious, Ibezime and Gross told Stubbs that they did not see him with any keys when he came in the first time, but Stubbs nevertheless went into the living room as if to look for them. Seconds later, three men burst into the house wielding guns. Id. at 402. The men, who had their jackets zipped up over their faces and skullcaps pulled down tightly on their heads, ordered the occupants of the house, along with Stubbs, to sit or lie down on the floor. Because their clothing mostly obscured their features, Brock only could discern that the intruders were black. Two of the armed men seized Ibezime and dragged her into the dining room, and the third man pushed Gross into the kitchen and sat him down on a stool. Id. at 403.

  Although the gunmen told Stubbs to leave the house, he walked toward the door and stood in the dining room where one of the gunmen was shouting questions at Ibezime and hitting her with his gun. Id. at 403, 408. The two gunmen in the dining room suddenly opened fire on Ibezime, shooting her eight times in the back. Id. at 408. They then ran out the front door, followed by Stubbs. Their associate in the kitchen proceeded to shoot Gross in the head. Id. at 409. As this gunman passed Cartledge on his way out of the house, he shot her in the chin, seriously wounding her.

  All of this carnage was witnessed by Brock as he held his nine-month-old brother on his lap. After the gunmen fled, Brock laid his baby brother on the sofa and ran outside to find help. As he ran toward a friend's house to call the police, Brock saw Stubbs, whom he knew by the nickname "Raider," standing on the corner of Finch and Ravine Streets with the three men who had just shot his mother and his stepfather. Id. at 362. Stubbs and his cohorts ran away when they saw Brock looking at them.

  The Rochester Arrests

  When the police arrived on the scene at Finch Street, Brock informed them that four heavily armed men, including "Raider," had entered his house and killed his mother and his stepfather. Brock added that "Raider" and the others probably could be found at 350 Birr Street. When the police went to 350 Birr Street, however, no one responded to their knocks. They questioned two neighbors about the identity of the residents of 350 Birr Street, but the descriptions given by the neighbors did not match those of the suspects in the Finch Street shootings. Id. at 793. Knowing that there was a drug house located at 250 Birr Street, the police assumed that Brock simply had been mistaken, and they proceeded to that address.

  Using a bull horn, the officers directed the occupants of 250 Birr Street to come out of the house with their hands up. Id. at 796-97. After about twenty minutes had passed, four people exited the apartment: Stubbs, Crutcher, Stubbs's girlfriend, Zelda Williams, and her child. The man referred to as "Smiley" had left the apartment before Stubbs returned from the crime scene. Stubbs and Crutcher were taken to police headquarters for questioning. Once at the police station, Crutcher indicated that had overheard Grimes, Stubbs, Muldrow, and McGee conspiring to kidnap witnesses to a prior murder.

  In the early evening of December 30, 1993, Officer Adami of the Rochester Police Department went looking for Muldrow at his apartment at 17 Englert Street. Id. at 870. Muldrow was not at home, but his brother, John Muldrow, ("John Muldrow")was there. Upon seeing the police, John spontaneously said, "I know why you're here. You're here for Tim." Id. at 873. John said that his brother was not home and that Officer Adami could look inside for him if he wanted. Id. When Officer Adami entered the apartment, he observed, in plain view, a 9-millimeter semi-automatic rifle and clip of ammunition, along with a MAC-11 and a .38 caliber revolver. Id. at 875. John Muldrow was taken outside and placed into a police cruiser where he signed a consent-to-search form. During the ensuing search, the police seized the three guns mentioned above, as well as several other guns, a large quantity of cocaine, some explosives, and over $5,000 in cash. Id. at 901.

  Muldrow was arrested several hours after the search, at about 10:55 p.m. The tactical unit of the police department which had been searching for Muldrow observed him riding in a car. When the police pulled over the car, Muldrow attempted to flee but was taken into custody after a brief foot chase.

  McGee was approached by the police on January 24, 1994; he attempted to flee after seeing them and discarded a .38 caliber handgun during the ensuing chase. Ballistics testing later indicated that this gun was the weapon used by Usher in the Locust Street murder.

  The fourth suspect, Grimes, remained at large.

  Grimes's Flight to Texas

  On February 2, 1994, Investigator Terrence Sheridan ("Sheridan") of the Rochester Police Department obtained information that Grimes was in Houston, Texas, with his girlfriend, Marilyn Hannah ("Hannah"). 10/21/94 Transcript of Huntley*fn1 Hearing ("10/21/94 Tr.") at 8. Sheridan learned that the couple was staying with Hannah's cousin, Rhonda Wilburn, at her apartment at 10200 North Bammell Drive in Houston. Late in the afternoon on February 2, 1994, Sheridan spoke with Sergeant John Swaim ("Swaim") of the Houston Police Department about the Finch Street murders and faxed Swaim information regarding Grimes and the pending charges against him.

  At about 7:55 p.m. Central Standard Time ("C.S.T.") on Thursday, February 3, 1994, Swaim and several other officers from the Houston Police Department arrested Grimes in the parking lot of 10200 North Bammell as he was returning to Wilburn's apartment. 8/28/94 Huntley Hearing Transcript ("8/28/94 Tr.") at 16. Grimes was transported to the Houston Police Department, where he arrived at 9:19 p.m. 10/21/94 Tr. at 19. Swaim read Grimes his Miranda rights from a pre-printed card, and Grimes agreed to waive them. Having received permission from Sheridan to interrogate Grimes, Swaim questioned Grimes about the events of December 28, 1993. Grimes denied any involvement in the murders, stating that he was at a rap concert that night with his girlfriend. 8/28/94 Tr. at 26. Swaim informed Grimes that he felt that his manner of speaking and body language indicated that he was lying about his involvement in the murders. 8/28/94 Tr. at 27. At about 11:10 p.m., Grimes changed his story. He admitted that he was in the house on Finch Street when the murders occurred, but he insisted that he did not shoot anyone and that he fled when the shots were fired. Id. at 27-28. This statement was reduced to writing, and Grimes signed it at 12:17 a.m.

  After completing his interview with Grimes, Swaim called Sheridan in Rochester and told him the substance of Grimes's statements. Sheridan indicated that he believed that Grimes had a deeper involvement in the matter and decided to fly to Houston to talk to Grimes himself. Id. at 75. Later on the morning of Friday, February 4, 1994, Sheridan and Investigator Gary Schultz ("Schultz") left Rochester by commercial plane for Houston, arriving there at 3:15 p.m. local time. Swaim picked up ...

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