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).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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.
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
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.
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.
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 ...