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.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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
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.