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July 12, 2004.

ELI LEWIS, Petitioner,
FLOYD G. BENNETT, Superintendent, Respondent.

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District



Petitioner, Eli Lewis ("Lewis"), 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 on one count of felony murder and four counts of robbery.


  At about 10:12 p.m. on November 28, 1995, members of the Rochester Police Department responded to 1009 Joseph Avenue for a reported shooting. Upon arrival, Officer Marcos Rodriguez ("Rodriguez") observed two men jump out of a door or window at the rear of the house and begin to flee on foot. Rodriguez saw one man appear to remove an item of clothing as he fled the scene. After a short foot chase, Rodriguez apprehended Lewis, who was not wearing a shirt or jacket and was naked from the waist up. Rodriguez secured Lewis in a patrol car at the scene, where he remained for about 35 minutes.

  Other police officers who arrived on the scene observed the occupant of 1009 Joseph Avenue, Shawn Hart ("Hart"), lying dead on the kitchen floor in a large pool of blood. His pants pockets had been turned inside-out and a wallet lay on the floor near his body. In the bathroom, which adjoined the kitchen, the police observed a sawed-off shotgun and a mask.

  At about 10:55 p.m., Rodriguez transported Lewis to the Public Safety Building. On the drive, which took about fifteen minutes, Lewis spontaneously stated to Rodriguez, "there was a lot of blood on the kitchen floor" at 1009 Joseph Avenue. According to Rodriguez, he had asked no questions of Lewis, nor had he said anything to Lewis to provoke any response from him. Once they arrived at the police station, Lewis was brought to an interrogation room where he remained until about 1:40 a.m. At that time, Investigators Siersma ("Siersma") and Sheridan ("Sheridan") escorted Lewis to their office, where Sheridan advised Lewis of his Miranda rights. Lewis agreed to waive his rights and speak with the investigators.

  During the interview with Siersma and Sheridan, Lewis at first denied any involvement, claiming that he merely was trying to purchase marijuana at the drug house operated by Hart. About forty minutes later, after being confronted with several witnesses' statements, Lewis orally admitted to participating in the planning and execution of the robbery at 1009 Joseph Avenue. At about 3:31 a.m., as a written statement encompassing Lewis's oral confession was being prepared, Lewis stated that he was not going to sign anything and requested an attorney. All questioning ceased at that time. Lewis, however, continued to press Sheridan about the possibility of entering into a "deal" with the police. Sheridan informed Lewis that he could not enter into a deal with Lewis, but if Lewis was cooperative, Sheridan could relay that information to the district attorney. Lewis subsequently was charged with one count of felony murder and four counts of first degree robbery. Following a hearing in Monroe County Court (Marks, J.) denied Lewis's motion to suppress his statements to police on November 28 and November 29, 1995, finding that the statement made by Lewis as he was being transported to the police station was "voluntary, spontaneous and not the result of any interrogation[.]" Respondent's Appendix of Exhibits ("App.") at 124. The court also found that the prosecution had proven beyond a reasonable doubt that Lewis's confession to the police was voluntary and not the product of threats or coercion. Id. The court also granted Lewis's request for severance and scheduled a double jury trial for Lewis and Freddie Glover to begin on June 3, 1996. A separate trial for Shawn Glover was scheduled for July 29, 1996.

  The Lewis jury and the Glover jury jointly heard the testimony of all witnesses except Sheridan and Siersma, who were responsible for interrogating Lewis and Glover. A summary of the relevant trial testimony follows.

  Willie Randle ("Randle") testified that on the evening of November 28, 1995, he had come over to Hart's house on Joseph Avenue to hang out and help set up some stereo equipment. At about 10 p.m., there was a knock at the door. Jose Rivera ("Rivera"), who also was visiting Hart, answered the door. Soon thereafter, Randle heard the sound of a shotgun being pumped outside. Hart had joined Rivera at the front door, and Randle observed Rivera and Hart begin backing away quickly from the door. Randle heard three voices demanding to know where the money was and then the sound of shots being fired. Randle immediately dropped to the floor. Moments later, he was ordered by to strip naked and stay down on the floor. He testified that he did not look up to see the intruders' faces, but he could tell that there were three males. See Trial Transcript ("Trial Tr.") at 148-55. At one point, Randle heard one of them say, "Where is the money, you got to know where the money is!" Another voice said, "I shot one of them." A third voice said, "They are all going to die anyway. Kill all of them anyway." Id. at 156-57, 174-75. Randle testified that his jewelry was ripped from him and his wallet taken from his pocket, along with his pager. Id. at 158. Someone stood over him with a revolver and pulled the trigger several times. Id. at 160. Then, according to Randle, it became quiet. He heard the sound of a police radio coming from the kitchen. Id. Randle could not identify any of the perpetrators because they were wearing masks.

  Rivera testified that he had come over to Hart's house to drink some beers and smoke marijuana that night when they heard a knock on the door at about 10 p.m. When Rivera answered the door, a black male said, "I want a nic [sic]," and reached for his pocket. Rivera saw that the man was wearing latex gloves, so he locked the door and told Hart, "[I]t is a stick-up." Id. at 334-35. Hart pushed Rivera aside and said, "[L]et me take care of this." The next thing Rivera knew, Hart was on the ground and a man with a shotgun was standing to the side with a shotgun trained on his (Rivera's) face. Id. at 335. Rivera saw another man with a pistol who came in and began shooting into the ceiling. Id. at 362.

  The man with the shotgun told Rivera to get on the ground and take his clothes off; Rivera complied. Id. at 337. Rivera heard someone yelling repeatedly, "Shawn, where is the money?" Rivera heard Hart say that he did not have any in the house and to "take whatever was in the box [which contained Hart's drug stash]." Id. at 337-38. At that point, Rivera heard a gun go off followed by a loud thud. Id. at 338, 351. He heard someone say, "I popped one. I popped one." Id. at 338. Rivera tried to look up as someone ran past him, and the man with the shotgun hit him in the head. Id. Rivera was unclear as to whether the man with the latex gloves came into the house.

  Jennifer Sarquist, Hart's girlfriend, testified that on the night of November 28, she was sitting in the kitchen when she heard a "commotion" in the living room; she turned around to see Hart falling over a speaker and heard the sound of a gunshot. The first thing she saw was a man with a shotgun (i.e., Freddie Glover) in the living room. Sarquist ducked into the bathroom. Id. at 273-74. She did not see Hart get shot. Id. at 275. Once in the bathroom, Sarquist used the cordless phone to call 911. Scared that they would find her in the bathroom, she then opened the door and saw a man, about 5'6" and wearing a mask, standing over Hart with a small handgun. He (i.e., Shawn Glover) ordered her to get down on the floor and go through Hart's pockets to see if he had any money. Id. at 278-79. Another person came into kitchen; he had reddish hair,*fn1 was not wearing a mask and had no shirt on. A third person came from the back porch area into the kitchen, also wearing a mask. Id. at 280-81.

  When she had finished going through Hart's pockets, they ordered her back into the bathroom. The man with the shotgun then pushed his way into the bathroom.*fn2 Id. at 283. Sarquist finally persuaded him to let her leave the bathroom. When she emerged, there was a police officer standing in the kitchen. The man with the shotgun (i.e., Freddie Glover) exclaimed, "[T]hey shot my home boy!" Pretending to be one of the victims, he started to walk toward the front door. Sarquist insisted to the police that he was the one who had shot Hart, and the police restrained him from leaving. When they attempted to put him and Sarquist into the same police cruiser, Sarquist objected vehemently and was placed into another car.

  When the police first arrived on the scene, they saw two black males wearing dark clothing in the kitchen. Upon hearing the police outside, the two men looked up in surprise and then ran through the kitchen and jumped out of a window. E.g., id. at 127-27. One of the fleeing men was seen discarding a dark hooded sweatshirt as he ran from the vicinity. E.g., id. at 138, 432-39, 465. Both men were apprehended after a foot chase. When Lewis was caught, he was wearing nylon jogging pants and was naked from the waist up. Id. at 437-38. He was placed into a patrol car; when the car later was searched, the officer found a black mask and a pager. Id. at 443.

  Siersma and Sheridan testified at trial regarding the substance of the oral statements made by Lewis after his arrest. According to them, Lewis first claimed that he just happened to be at 1009 Joseph Avenue buying drugs. At one point during the interrogation, after Lewis remarked that he was not having a very good day, Sheridan showed Lewis a photograph of the deceased and said, "This man isn't going to have any more good days." Lewis then claimed that he had gone along with the Glovers to the drug house when they went to retrieve some money owed to Freddie Glover. Forty minutes later, after being confronted with statements by several of the witnesses, Lewis admitted that it was a planned robbery. According to Lewis, the Glover brothers needed money, and Freddie Glover felt that the occupant of Joseph Avenue owed him money. Lewis said that he agreed to help the Glover brothers stage a home-invasion robbery at the drug house in return for a cut of the proceeds. His role was to allow the Glover brothers to gain entry to the house by posing as a person interested in purchasing drugs. He admitted to picking up a pager that had fallen to the floor. Lewis stated that he removed his jacket and shirt before he ran out the backdoor to make it appear as though he was a victim. E.g., id. at 673-78.

  The jury returned a verdict convicting Lewis of all counts in the indictment. Lewis was sentenced to 20 years to life on the murder charge (count one) and 10 to 20 years on each of the first degree robbery charges (counts two through five). The sentences for counts two and three (the Hart robbery charges) were set to run concurrently to each other, but consecutively to count one. The sentences for counts four and five (the Randle robbery charges) were set to run concurrently to each other, but consecutively to counts two and three.

  The Appellate Division, Fourth Department, affirmed Lewis's conviction on December 27, 2000. People v. Lewis, 278 A.D.2d 819 (4th Dept. 2000). The New York Court of Appeals denied leave to appeal on February 26, 2001. People v. Lewis, 96 N.Y.2d 760 (2001).

  This habeas petition followed in which Lewis raises the following grounds for relief: (1) ineffective assistance of trial counsel and appellate counsel premised upon their "respective failure to contest the court's jurisdiction; the lack of a statutory provisions in the usage of the dual juries selection process; and the lack of a record of defendant's knowing or intelligent waiver of his right to select a jury in accordance with the state's jury process"; (2) failure of trial counsel to seek a Dunaway hearing;*fn3 (3) failure of appellate counsel to argue that trial counsel was ineffective for failing to request a Dunaway hearing; (4) insufficiency of the evidence with regard to defendant's intent; (5) failure of the trial court to deny suppression of defendant's statements to police; and (6) failure of the trial court to suppress identification evidence that was not properly disclosed prior to trial. For the reasons set forth below, Lewis's § 2254 petition is denied.


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